We took Latin in high school, and – thanks in no small part to the late Emily Bernges of Sturgis, Michigan – we developed great respect for Cicero. Senator Marcus T. had plenty of his own problems to deal with when he gave his first oration against Cataline, but we threw up our hands like he did and asked the same question about today’s case. Over the past week, we have been charting how, during the 20th Century, the law governing landowner liability had crept inexorably toward mandating that property owners inspect their trees. In today’s case, a New Jersey court likens trees to product liability, in that a property owner who sells his or her land may remain liable for what happens to the trees well after the new owner takes possession.

“Bull-pucky!” you say. “I sold the place, I’m done with it!” To that we respond first that you need a better class of epithet, and second that you are sadly mistaken.

Mr. Narsh had the misfortune to be driving by a wooded lot belonging to a local church, when a tree fell on his car. After the funeral, his estate sued the church, as well as the previous owner, the owner before that owner, and the owner before that owner. It’s surprising that the Lenape Indians – who had owned the area back when Giovanni da Verrazzano arrived in 1524 – weren’t co-defendants, too.

It turned out that Zirbser Brothers, Inc., had bought the land three years before the accident. That corporation sold it 18 months later to Zirbser-Greenbriar, Inc. (“ZGI”), which – as its name suggests – was another company owned by the same people who owned Zirbser Brothers, Inc. ZGI built a nursing home on some of the land, and conveyed the rest, including the part with the dead tree, to St. Stephen’s Lutheran Church just a few weeks before the accident.

A jury decided that the Estate that had sold the property to Zirbser Brothers, Inc., and the Church were not liable. However, the Zirbser brothers’ two companies were found liable, despite the fact that neither owned the property when the tree fell.

The court first observed that in New Jersey, one who places or maintains in or near a highway anything which, if neglected, will render the way unsafe for travel, is bound to exercise due care to prevent it from becoming dangerous. This rule places an affirmative duty on the landowner to prevent trees from becoming dangerous.

We could see that coming from the decisions we reviewed last week. It seems, however, that there was more. The Court said it saw “no reason why an owner who would be liable to a member of the public under the rule … should be absolved from liability by the simple act of the sale of his property.” Calling the rule that a landowner was no longer liable once the property was sold an “[a]ncient distinction,” the appellate court compared the matter to product liability – where manufacturers and everyone else in the supply chain remain on the hook for defects for what seems forever (just ask the general aviation industry) – holding that the landowner could remain responsible for defects even after the land was sold and he could no longer remedy any problems.

The Court found “no support in reason and logic for any distinction between the liability of a vendor of land in an urban area who erects a tower on his land, and one who maintains a rotten tree on his land.” The Court concluded that “[t]he obligation of reasonable inspection which may be involved if a vendor is to be held liable for dangerous conditions existing on his property at the time of its conveyance, is small when compared with the danger posed by a rotten tree poised over a busy highway. The fact that the vendor may have lost the right to go on the property and make repairs is beside the point–the rule is aimed at inducing him to make inspections and guard against dangers before conveyance. The law should be based on current concepts of what is right and just and the judiciary should be alert to the never-ending need for keeping its common law principles abreast of the times.”

Yeah, right. What this means to the prudent homeowner is that any conveyance of real estate should be accompanied by a tree inspection by a certified arborist, insurance against the outside chance that someone gets hurt or property gets damaged by a falling tree in the future.

How long in the future? This liability for property that has been sold can’t go on forever, right? After all, the Lenapes didn’t get sued. The Court said that “where an owner of land adjacent to a highway in an urban area, conveys his land, on which is located a tree which he knows, or should know, presents an unreasonable risk of injury to the public, he remains subject to liability for physical harm caused by such condition after his vendee has taken possession … until the vendee has had reasonable opportunity to discover the condition and to take such precautions.”

What’s reasonable? That’s probably for the jury to decide. The problem is, if you’re in front of a civil jury, that means you’re in trial, and you’ve already lost even if you win. Better to spend the extra money early for an arborist’s inspection at closing.

More cost. More uncertainty. More precautions. Oh, what times! Oh, what customs!

Narsh v. Zirbser Brothers, Inc., 111 N.J.Super. 203, 268 A.2d 46(N.J.Super.A.D. 1970). On April 28, 1967, James H. Narsh met his death when a large tree fell upon him as he was driving his car on North Evergreen Avenue in Woodbury. The plot on which the tree had been standing was heavily wooded with old trees, a number of them being close to the sidewalk. A witness who resided in an apartment across the street heard a cracking noise and saw the tree fall onto decedent’s car. He had previously noticed that the tree, which was very close to the road, was dead, shedding branches, and appeared quite rotten.

The plot on which the tree had been located had been sold three years before by the estate of Alfred Green to Zirbser Brothers, Inc. Zirbser Brothers, Inc. retained title until for two years, then conveyed it to ZGI, a corporation formed by the Zirbser brothers and having the same stockholders, directors and officers as Zirbser Brothers, Inc. ZGI retained a portion of the tract for a nursing home, but on April 20, 1967, sold the remainder – including the portion on which the offending tree was located – to a church. The accident occurred eight days later. All four parties were sued.

The jury was exonerated the Green estate and the church, but found both Zirbser Brothers, Inc. and ZGI “guilty of negligence which was a proximate cause of the accident.” The jury awarded $85,000 in damages.

Zirbser Brothers appealed.

Held: Zirbser Brothers, Inc., remained liable for the tree for a reasonable period of time after transfer to the church.

There was ample evidence that the fallen tree, like many others on the property, was rotten, and that any owner should have known it. But Zirbser Brothers, Inc., neither owned nor possessed the lot in question at the time of the accident. Its conveyance to ZGI had taken place almost a year before, although Zirbser was on the property building the nursing home. Some of its construction materials, and its construction trailer, was still on the land when the accident occurred. Nevertheless, from the time of the sale to the church, Zirbser was without right to cut down trees or otherwise police the part of the property where the subject tree was located.

The Court held that as of the time of the accident, Zirbser’s presence on the property purchased by the church, standing alone, did not afford an adequate basis for a present duty on its part to guard against the falling of the tree.

Pay the inspector, Shirley … it’s a lot easier to do it now … and as a group, they’re cheaper than lawyers.

If one negligently creates a condition on land which is unreasonably dangerous to outsiders, the Court said, there is no good reason why his potential liability should stop either when he transfers possession of that land or when his successor in occupancy becomes liable either because of his possession or because of his fault in negligently omitting to repair the danger. The Court observed that the boundaries of tort liability for dangerous conditions on the land have gradually been extended by our courts in recent years. It held that “[t]he rationale which underlies [a landowner’s] continued liability for a structure on his land would apply equally to a tree which is so close to a highway as to endanger traffic thereon should it fall. In this day and age, with its attendant increase in population, greater use of automobiles and more intense use of land, the presence of a rotten tree along a busy highway poses dangers greatly in excess of those with which the courts were confronted in the cases in which appellant relies. The obligation of reasonable inspection which may be involved if a vendor is to be held liable for dangerous conditions existing on his property at the time of its conveyance, is small when compared with the danger posed by a rotten tree poised over a busy highway. The fact that the vendor may have lost the right to go on the property and make repairs is beside the point – the rule is aimed at inducing him to make inspections and guard against dangers before conveyance.”

The Court thus held that where an owner of land adjacent to a highway in an urban area conveys his land – on which is located a tree which he knows, or should know, presents an unreasonable risk of injury to the public – “he remains subject to liability for physical harm caused by such condition after his vendee has taken possession. If he has actively concealed the condition from the vendee his liability continues until the vendee discovers it and has reasonable opportunity to take effective measures against it, otherwise it continues until the vendee has had reasonable opportunity to discover the condition and to take such precautions.”

The takeway here: the prudent landowner will have regular inspections of trees done, with written reports, and will follow the reasonable advice of the arborists. When the property is sold, a home inspection may be requested by the buyer, but a grounds inspection should be ordered by the seller.

Case of the Day – Monday, January 5, 2015

LARA’S THEME

Cue the balalaikas for Lara’s Theme,one of the most memorable leitmotifs in movie history. Today’s victim was singing, all right, after Dr. Zhivago patched him up, but this Lara’s theme went something like “”An employee, no contractor am I; so my rehab, workers comp now must buy …”

We’re not quitting our day job to become lyricists, but Lara – that is, Jose Lara – seemed to himself, his customers and the Lord to be an independent contractor right up until the time he fell off a restaurant customer’s roof while trimming bushes. Only then, in a rewrite of history that would have made a Bolshevik blush, did Mr. Lara decide that he had been an employee all along, and thus was entitled to workers comp payments for the rest of his natural life.

Workers’ compensation covers employees, but not independent contractors, as an efficient and reasonable means of delivering benefits to employees injured on the job. It is intended to provide quick assistance to the injured and to free employers from costly and protracted litigation over claims. This is not to say that the system is intended to be an ATM for any worker with a claim. A claims board seeks to protect the system from bogus claims, and the employer ­– which is likely to see workers comp insurance premium take off like a skyrocket after a claim – have a lively interest in, as Rodney Dangerfield put it, keeping it honest.

In this case, both the claims board and the restaurant cried foul. It seemed Mr. Lara was in the business of doing odd jobs, and that the restaurant had hired him once, months before, to trim the bushes and perform light maintenance. The restaurant was hardly his only customer, and he arrived on the scene with his own tools. The owner told Mr. Lara what had to be done – the bushes trimmed – but left it to Lara to determine how best to do the job.

The workers comp board at first, rather inexplicably, held that Mr. Lara had been the restaurant’s employee, but the restaurant asked for reconsideration. Usually, seeking reconsideration is an exercise in futility. Few things in the known universe are as immovable as a judge who’s made up his or her mind. Asking a judge to rethink the matter and announce that he or she was wrong the first time around is like trying to teach a pig to sing – it wastes your time and ends up annoying the pig.

In this case, however, the board (maybe because it was not made up of real judges) revisited the issue and held that Mr. Lara was indeed an independent contractor. Mr. Lara’s lawyer promptly sought judicial review. We say his lawyer instead of Mr. Lara, because it isn’t at all clear the ingenuous injured workman was on board. In fact, he freely testified that he had a number of customers, that no one at the diner told him how to do his job, and that he didn’t consider himself an employee of the place.

It seems no one other than his lawyer did, either. On review, the court took as most important among the factors the fact that no one directed Mr. Lara in how to trim or when to trim. He wasn’t being paid hourly, but rather by the job. Everything about the relationship said “independent contractor.”

We start to sound drearisome, but how much easier it would have been for the restaurant if it had signed a simple agreement with Mr. Lara before he fell from the roof. It would have saved a mountain of litigation.

Lara v. Workers’ Compensation Appeals Board, 182 Cal.App.4th 393 (2010). Mr. Lara, a 62-year old man, suffered injury to his head, lower back, neck, right shoulder, arm, hand, and thumb when he fell from a roof on March 11, 2000, while pruning bushes for the diner. Lara filed a workers’; compensation claim against Metro Diner’s then sole shareholder, Scott Broffman, personally and against Metro Diner. The diner leases space inside a hotel. Lara fell from the hotel’s roof. At the hearing, Lara testified that he has been gardening, painting, pipe fixing, and doing graffiti removal for 25 years. His clients are people who either know him or who find him on the street corner. He charges by the hour, but sometimes he contracts for the entire day. He usually does the same type of work but for different people each day. He has no employees and does not work out of an office or advertise.

The restaurant manager’s wife Patricia arranged for Lara to do gardening work at Metro Diner on two occasions. The first time, Patricia, who was Lara’s dentist’s secretary, had asked Lara what kind of work he did. When he told her he gardened, she stated that her husband owned a diner. She gave him an address and told him to go early in the morning so his work would not make the restaurant’s tables dusty. Upon his arrival, Lara was asked to trim the bushes along the roofline. The second time he went to Metro Diner, March 11, 2000, was about a year later.

Lara was paid in cash by the hour for his services at Metro Diner the first time, but was not paid the second time because he did not complete the work after his fall and he never sent a bill. Metro Diner did not take taxes out of his pay; Lara pays his own taxes. Lara and Patricia did not discuss the number of hours he would work. Nor did they discuss the price until he was finished with the work. The first time, Patricia paid him $15. They did not discuss when he would provide services in the future, only that she would contact him when services were needed.

These things can happen …

On the second occasion about a year later, Patricia asked Lara to do the same job, i.e., trim the bushes along Metro Diner’s roofline. They did not discuss terms of employment, such as the number of hours, or the price he would be paid for the job. Lara had no plans to do any additional work after the second occasion, only that he would trim the bushes for Metro Diner when Patricia asked him to. Lara brought all the equipment he needed to do the job, including a trimmer, rake, a broom, and a blower, which tools he owns. He also brought a ladder that he borrowed from a friend. He arrived in his own truck. No one told him how to do his job “because he already knew how to do his job.” Patricia did not tell him to bring an assistant or how long the job would take. She did not tell him to arrive on Saturday at 7:00 a.m., just to go early because the diner opened between 7:30 and 8:00 a.m.

The Board that Lara was an independent contractor and thus not entitled to workers’ compensation benefits. Lara did not testify during trial that he was an employee of Metro Diner. Rather, he testified he handled his own taxes and contracted with numerous individuals to perform specific jobs. Also, the Board noted Lara’s statement in his civil action against the hotel, filed after his injury, that “I am self-employed as a gardener.” However, the Board recognized that the distinguishing characteristic of an employer is the power to control the details of the work and methods of performance. On that point, the Board found “no evidence that Metro had the power to control the details of [Lara’s] work in pruning the bushes or the method by which he performed that task.”

Lara appealed.

Held: Lara was an independent contractor. The Workers’ Compensation Act extends only to injuries suffered by an ’employee’ which arise out of and in the course of his ’employment. California law holds that an “independent contractor” is any person “who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.”

The Court held that the principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired….’; The existence of such right of control, and not the extent of its exercise, gives rise to the employer-employee relationship. Other secondary factors, derived largely from the Restatement Second of Agency, include, inter alia, “(1) whether or not the worker is engaged in a distinct occupation or an independently established business; (2) whether the worker or the principal supplies the tools or instrumentalities used in the work, other than tools and instrumentalities customarily supplied by employees; (3) the method of payment, whether by time or by the job; (4) whether the work is part of the regular business of the principal; (5) whether the worker has a substantial investment in the business other than personal services; (6) whether the worker hires employees to assist him.” Two additional factors are whether the parties believe they are creating the relationship of employer-employee; and the degree of permanence of the working relationship.

Applying the criteria, the Court found that Metro Diner did not possess the right of control and the factors do not otherwise weigh in favor of employee status. Lara was engaged to produce the result of trimming the bushes, the Court said. Neither party presented evidence that Metro Diner had the power to control the manner or means of accomplishing the pruning. The means and manner to accomplish the result of pruning were neither discussed nor were part of the agreement.

The Court observed that its conclusion that Lara was an independent contractor at the time of his injury is further supported by other criteria. “First, Lara performed this work as part of his own occupation as a gardener, which he had been doing independently for approximately 25 years. Not only did Lara have many clients, but Patricia did not ask him to perform any service other than pruning the bushes. Second, Lara supplied the equipment he used for the job. Such tools were not ones that a restaurant would have. Third, Lara had a substantial investment in his business such as his equipment. Although Lara does not advertise, he has several different clients who either pick him up from the street corner or who telephone him to perform specific jobs. Fourth, he was not hired by the day or hour, or even on a regular basis. Payment was only discussed after the work was complete. Sometimes Lara charged by the hour and sometimes by the job and so Lara was paid on a job-by-job basis, with no obligation on the part of either Metro Diner or Lara for work in the future. Taxes were not taken out of the money he was paid. Lara estimates and pays his own taxes. Fifth, no date for Lara’s return was specified after the first time he pruned bushes for Metro Diner. Lara understood only that he would be contacted when his services were needed, with the result that he worked for a circumscribed period of time with no permanence whatsoever in his working relationship with Metro Diner. Thus, Lara’s profit or loss depended on his scheduling, the time taken to perform the services, and his investment in tools and equipment.

The Court noted that the criteria were not to be applied mechanically as separate tests, but “are intertwined and their weight depends often on particular combinations … [T]he process of distinguishing employees from independent contractors is fact specific and qualitative rather than quantitative.” Although the workers’; compensation statutes are to be construed liberally in favor of awarding compensation, the Court said, “no amount of liberal construction can change the balance of evidence here. Nor does our conclusion that Lara was an independent contractor defeat the purposes behind the workers’ compensation system. Lara had control over his work and safety and there was no evidence that he could not have spread the cost of insurance against work-related injuries through fees he charged for his services.”

But we digress. We’re really talking light and soybeans here. Last weekend, the vigilent treeandneighborlawblog editors read a book review for a new tome on light pollution called “The End of Night.”It reminded us how soybeans like the dark, and the plight of Farmer Smalley.

Farmer Smalley raises soybeans in Wyandot County, Ohio. When the Ohio Department of Transportation installed high mast lighting at the US 30/US 23 interchange, Mr. Smalley’s soybeans would not flower and flourish under the bright nighttime lights. This is apparently not an unknown effect. He sued the DOT in the Ohio Court of Claims, seeking damages in a self-written complaint.

The Clerk heard the matter administratively, and concluded that the lights were not a nuisance, apparently because of the benefit such lights had for the motoring public. However, the loss of two acres of beans did constitute a constitutional “taking of property” for which he should be compensated. The damages were pretty meager for 2007: $512 plus his $25 filing fee.

Still, the Clerk did not dismiss out of hand the notion that light pollution could constitute a nuisance in some circumstances, those where the social benefit of the light was insignificant next to the interference caused the neighbor.

A few months later, the full Court of Claims reversed the judgment. It held that the Ohio constitution did not permit compensation for consequential damages to property, only for the actual taking of property. Because of that. Farmer Smalley’s loss was not compensable.

Even so, both the Court and the Clerk apparently accepted the notion that the light pollution damaged Smalley’s property. It was just that the damage, however real, could not be compensated.

Farmer Smalley sued the DOT in the Ohio Court of Claims. DOT admitted it had installed the mast lighting, which it said was intended to “safely illuminate the expressway.” DOT argued the installed lights “are the safest and most efficient lighting source given the traffic flow and lighting required at interchanges.” It admitted that light did “occasionally bleed onto adjacent property [and] there is little doubt that defendant’s light encroaches upon plaintiff’s property.” It argued, however, that it could not be held liable for any damage to plaintiff’s bean crop caused by its light encroachment. It also argued that Farmer Smalley’s cost to raising the beans was $256.47 an acre, reducing his net loss to $512.94.

Held: The Clerk of the Court held that the light pollution was not a nuisance. However, he found that the actual harm suffered by farmer was different in kind from harm suffered by general public, as required to establish a taking under “Takings Clause” of Ohio Constitution.

It appears that farmer Smalley filed his complaint himself, because DOT flailed about in its defense, as if it wasn’t sure where the farmer was going. It argued at length that its lighting was not a nuisance, because Smalley had offered no proof that DOT was negligent in erecting the lighting. It asked the Court to weigh the benefit that the high mast lighting gave to thousands of motorists against the harm the lights caused plaintiff in destroying two acres of his bean crop.

The Clerk sagely noted that DOT “… essentially proposed that plaintiff should have to bear a financial burden for his crop loss in a situation where he was legally using his land for a specific valuable purpose and the harm caused was attributable to the acts of DOT.”

He defined an absolute nuisance as a distinct civil wrong arising or resulting from the invasion of a legally protected interest, and consisting of an unreasonable interference with the use and enjoyment of the property of another. Such a nuisance was the doing of anything without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his or her legal rights, or the collecting and keeping on one’s premises of anything inherently dangerous or likely to do mischief, if it escapes, which, escaping, injures another in the enjoyment of his legal rights. A qualified nuisance, on the other hand, was distinguished from absolute nuisance as being dependent upon negligence consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm which, in due course, results in injury to another.

Considering the utility of the high mast lighting to the motoring public, the Clerk correctly concluded that the lighting was neither an absolute nor qualified nuisance. But that didn’t mean that Mr. Smalley was out of luck. Under the “Takings Clause,” any taking — whether it be physical or merely deprives the owner of an intangible interest appurtenant to the premises — entitles the owner to compensation. In order to establish a taking, a landowner must demonstrate a substantial or unreasonable interference with a property right, and such an interference may involve the actual physical taking of real property, or it may include the deprivation of an intangible interest in the premises. Something more than loss of market value or loss of comfortable enjoyment of the property is needed, to constitute a taking under the “Takings Clause:” governmental activity must physically displace a person from space in which he was entitled to exercise dominion consistent with the rights of ownership. To constitute a taking actual harm suffered by the plaintiff must differ in kind rather than in degree from the general public.

Nevertheless, the notion that light can constitute a nuisance and that a property owner suffering from light shining onto his or her land from another location, appears to be accepted.

Case of the Day – Wednesday, January 7, 2015

ODDJOB

We suspect that imagining a world without frivolous lawsuits would be an impossible dream.

We suspect neighborhood grocer Jerald Walker won’t try to save a few bucks like this anymore. When he had odd jobs to be done around the store, he would offer the work to casual laborer Gene Moser and his sometimes-sidekick Paul McCubbin. Gene and Paul (think “Stan and Ollie,” if you like), would paint, repair doors, rake leaves or perform other menial tasks, and Jerald would pay them an agreed-upon price for the work.

As lawyers like to say, there came a time when Jerald needed some trees trimmed. He called Gene and offered $30.00 for the project. Gene, apparently daunted by the scope of work to be performed, recruited his swamper Paul, agreeing to split the fee 50-50. Instead, the only thing that was split was Paul’s noggin.

Gene and Paul finally showed up to do the job, and Jerald provided them with the saws they needed. They had only trimmed a couple branches when a limb being cut by Gene fell and hit Paul.

Would Pancho sue the Cisco Kid? Tonto file against the Lone Ranger? Sancho allege a tort against Don Quixote? Such weighty questions may never be answered, but we do know that Paul would sue Gene. And he did.

For good measure, Paul McCubbin also went after Jerald Walker, arguing that he deserved workers’ compensation because he had been the store’s employee and, in the alternative, contending that the tree trimming work was inherently dangerous. An “inherently dangerous” occupation provides an exception to the rule that an independent contractor cannot collect against a hiring party.

The Workers’ Compensation hearing officer ruled that Paul McCubbin was not an employee of the store, a position agreed with by the trial. For good measure, the trial court also held that tree trimming was not an inherently dangerous occupation. Paul McCubbin’s guardian – necessary because his head injuries were severe and permanent – had more luck in the Court of Appeals. That tribunal ruled that material questions of fact had been raised both as to whether McCubbin was an employee and whether the work he had been hired to do was inherently dangerous. The parties appealed to the Kansas Supreme Court.

The Supreme Court ruled that nothing in the record permitted a holding that McCubbin was Jerald Walker’s employee. The fact that Walker provided the tools and pointed out the trees to be trimmed was not determinative, because the price was set for a complete job, Walker had no control over when the job was done or how it was done, or even over how McCubbin and Moser would split the payment for the work. Thus, Paul McCubbin was the grocery store’s independent contractor, and Walker was not liable for the accident.

Sure you do … but does that make you a tree trimmer?

What’s more, the Court said, no work is “inherently dangerous” if it can be performed safely. Tree trimming can be done safely and without accident (although maybe not by McCubbin and Moser). Thus, the “inherently dangerous” exception to nonliability did not apply here.

McCubbin v. Walker, 256 Kan. 276, 886 P.2d 790 (S.Ct. Kan. 1994). Jerald and Carol Walker own Valley Market, a small, neighborhood grocery store in Kansas City, Kansas. Jerald often hired Gene Moser and Paul McCubbin, two local men, to perform odd jobs at the market, such as painting, light carpentry, and other general maintenance duties. Walker viewed the two as ‘contract labor’ rather than as traditional employees. Walker would decide on whatever job he needed to be done and then negotiate with them about the cost of performance.

In April 1989, Walker contacted Moser about trimming dead tree branches from some trees in front of the market. Moser agreed to do the job for $30.00. Moser contacted McCubbin to help him trim the trees, and the two agreed to split the money, with Moser providing all of the equipment. The two trimmed two branches from one tree and had moved onto a second tree, when a trimmed branch struck McCubbin as it fell, causing him severe and permanent injuries.

McCubbin’s guardian filed a workers compensation claim, arguing that McCubbin was Walker’s employee. The Worker’s Compensation administrative law judge held that the parties did not come under the Kansas Workers Compensation Act, as Walker did not meet the statutory definition of an employer and McCubbin did not meet the statutory definition of an employee. The ALJ found instead that both Moser and McCubbin were independent contractors.

McCubbin’s guardian next sued Walker and Moser, alleging that McCubbin’s injuries were the direct and proximate result of their negligence. Walker moved for summary judgment, arguing that McCubbin was an independent contractor and that tree trimming was not an inherently dangerous activity which would require Walker to equip, supervise, or warn McCubbin of the obvious dangers involved in the trimming of trees. The trial court held that even assuming the greatest possible duty that could be owed by Walker to McCubbin, there was no breach. The court found that McCubbin was an independent contractor, and his injuries were caused by his own and Moser’s actions, not by a condition of the premises.

The Court of Appeals reversed, holding that whether McCubbin was an employee or an independent contractor, and whether tree trimming was an inherently dangerous activity, should be determined by a jury.

Held: Moser was an independent contractor, and the work he had undertaken was not inherently dangerous so as to impose any special duty on Walker. The Court observed that an independent contractor is someone who contracts to do certain work according to his or her own methods, without being subject to the control of the employer, except as to the results or product of the work. The single most important factor in determining a worker’s status as an employee or independent contractor, the Court said, is whether the employer controls – or has the right to control – the manner and methods of the worker in doing the particular task. As a general rule, when a person lets out work to another and reserves no control over the work or workers, the relation of contractee and independent contractor exists, and not that of employer and employee, and the contractee is not liable for the negligence or improper execution of the work by the independent contractor.

The Supreme Court agreed that an exception to the general rule of nonliability of an employer for the negligence of an independent contractor is the “inherently dangerous activity” doctrine. Under that doctrine, one who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which the employer contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the independent contractor’s failure to take reasonable precautions against such dangers. However, an activity cannot be termed inherently dangerous merely because it may possibly produce injury; instead, the intrinsic danger of the work on which the doctrine is based must result from the performance of the work, and not from the collateral negligence of the contractor.

Here, the Court said, Moser and McCubbin were independent contractors. Walker hired Moser to produce a result, and did not recruit McCubbin. Walker did not provide the equipment, and – although he specified which trees he wanted trimmed – did not direct how the work was to be performed. Furthermore, payment was based on the completed task, and was a single sum regardless of the time and effort expended. Finally, it was relevant that Moser and McCubbin provided general maintenance and odd job services for a number of people, not just Walker.

As for the work itself, the Court held, tree trimming is an everyday activity that can be accomplished safely and, when done so, is an activity in which danger is not inherent in the activity itself. Tree trimming generally does not constitute an inherently dangerous activity.

Thus, McCubbin was not entitled to recover damages from the Walkers.

Case of the Day – Thursday, January 8, 2015

IT DOES NOT MAKE SENSE

Every good trial lawyer knows how to employ the “Chewbacca Defense” to his or her client’s benefit.

Sometimes you wonder when you read a decision, “What were they thinking? That does not make sense.”

Today’s case is something like that. The facts are straightforward enough. Smith sold a gas station-restaurant-bar to Mendonsa, but carefully secured Mendonsa’s promise that he wouldn’t let the trees on the plot get so high that they shaded Smith’s adjacent orchard. Wouldn’t you know it, Mendonsa at some point decided he liked tall trees, or he didn’t like trimming tree, or he couldn’t find his clippers, or something. He let the trees grow, and they shaded four of Smith’s something-berry trees (we have no idea what he was raising in the orchard, but this being California, they probably weren’t plantain trees).

Anyway, Smith sued, and Mendonsa, for some foolish reason, fought the action. The trial court of course found for Smith, and then worked some rump math, figuring the past damages were about $140.00 a year (this was 1952, when a dollar was worth a bit more than now), and multiplied over three years, the damages were $420.00. The Court also enjoined Mendonsa from maintaining trees over 15 feet or branches which were hanging over on Smith’s land.

On appeal, Mendonsa complained that the damage calculations were too imprecise, and that the injunction was unduly burdensome on him. The Court of Appeals disagreed, finding the calculations pretty good for an uncertain case, and anyway complaining that “[t]he wrong was that of the appellants and they are not in a favored position to urge the technical rules governing awards of damages.”

This case may be the legal equivalent of this – what were they thinking?

Huh? In the words of South Park’s parody of Johnnie Cochran in the legendary Chewbacca defense: “that does not make sense.” If the wrongdoer isn’t entitled to argue that the court has to follow the “technical rules” of assessing damages, then who is? It’s a cinch the plaintiff isn’t going to do anything to restrain the court in calculating damages. This is probably one of those “hard cases make bad law” kind of decisions … but even so, it’s hard to feel much sorrow for Mr. Mendonsa, who should have been enjoined and been made to pay damages.

A deal’s a deal, after all.

Smith v. Mendonsa, 108 Cal.App.2d 540, 238 P.2d 1039 (Ct.App. Cal. 1952). Smith entered into an agreement with Mendonsa concerning the use of a gas station, restaurant and bar he had sold to him. Mendonsa agreed that he would permit no trees to remain on the site which exceeded a height of 15 feet;, and that if any tree got taller than that height, Smith would have the right to remove the same. The purpose of the agreement was to prevent the shading of Smith’s orchard next door. land and to prevent trees on the appellants’ property from overhanging it. Mendonsa let the trees get too tall, and Smith sued to enforce the deal. The trial court agreed with Smith, and awarded him money damages for past violation as well as an injunction prohibiting Mendonsa from maintaining any tree in excess of 15 feet in height or from permitting branches of any tree to overhang the orchard. Mensonda appealed, complaining that the damages awarded weren’t supported by the record and that the injunction was too harsh.

Held: The damages and injunction were upheld. The Court observed that the record showed that the shading of the orchard trees near the appellants’ property line was detrimental to the growth of the trees themselves and would, during some seasons, decrease the yield of fruit on the affected trees. Four trees were affected, the evidence showed, the Court found, and while the proof of damage was not exact, it nonetheless gave some fairly definite basis for computation.

Mendonsa let the trees get a little too tall …

With respect to growing crops, the measure of damages is the market value of the probable yield without detriment, minus the cost of producing and marketing, and minus the return actually received. The damages awarded amounted to about $140 per year, and the period of the damage was three years. Additionally, there was damage in that the trees themselves were retarded in growth by the shade.

The Court concluded that the record furnished adequate support for the award made. Anyway, the Court said, Mendonsa was in the wrong, and thus he was not in any position to demand application of the technical rules governing awards of damages. Where a party has suffered damage, the Court held, a liberal rule should be applied in allowing a court or jury to determine the amount, and that, given proof of damage, uncertainty as to the exact amount is no reason for denying recovery.

As for the injunction, the Court held, in cases involving promises as to use of property, injunctive relief — depending upon inadequacy of damages — may be granted. A deal is a deal, the Court seemed to say, and where Mendonsa made the promise to keep the trees trimmed back and then violated it, the award of a perpetual injunction from maintaining any tree in excess of the agreed-upon height and from permitting branches to overhang was not an abuse of the trial court’s discretion.

It is, after all, the duty of the court to encourage the keeping of agreements properly made and to give adequate remedy for breach thereof when it occurs, particularly where breach is deliberate and wrong is willful.

Arboriculture professionals pride themselves at being expert at what they do, which is – generally put – to manage trees. Management may be trimming, preservation, or in many cases, removal of trees. Often, how the tree is to be treated depends on the arborist’s expert opinion of the condition of the tree, and the threat (if any) that the tree poses to persons or property.

A lot can depend on the arborist’s opinion. If an examination of a tree misses a defect or disease, and the tree ends up falling on a troop of Brownies who happen by on the public sidewalk at just the wrong time, the unlucky arborist will end up with a lot of ‘splainin to do.

The U.S. Court of Appeals for the Seventh Circuit handed down a decision last fall that involved not a single tree. Nevertheless, the decision should serve as a caution to arborists, landscapers and tree trimmers – not to mention those who hire them.

It seems that small-time grain handler ConAgra Foods, Inc. (January 8th market capitalization $15.51 billion) had a problem with a wheat pellet storage bin. Grain can be tricky stuff, generating a lot of dust as well as carbon monoxide. Both of these like to explode with little provocation. The technical people call it “deflagration,” more of a low-level snap and crackle than a high-level detonation “pop” – but to the man or woman on the street, it’s an fairly destructive bang.

ConAgra knew just what to do when one of its grain bins in Chester, Illinois, started heating up spontaneously. It called in an expert in “hot bins,” a sort of a Red Adair of wheat silos. The company, West Side Salvage, went to work on the unstable grain bin, but only after a delay occasioned by contracting procedures and West Side’s other business commitments.

The delay proved the project’s undoing. West Side tried to salvage some of the wheat pellets in the bin, but removal of the grain let more oxygen into the bin, and the instability increased. West Side’s supervisor called firefighters to stand by, but while he awaited their arrival, he sent several workers for one of West Side’s subcontractors into the bin through a tunnel to retrieve tools. While they were doing so, the grain dust exploded, seriously injuring them.

Everyone knows that an owner is not responsible for the negligence of an independent contractor. Everyone also knows that the owner may be liable if it does not provide the independent contractor with a safe place to work. The district court agreed that ConAgra had done just that, and that West Side was negligent in sending the employees into the dangerously unstable grain bin. It smacked ConAgra and West Side jointly with $18 million in damages for negligence.

ConAgra appealed, arguing that it was not liable for any damages to the subcontractor employees, because West Side knew what it was getting into. Besides, its contract with West Side provided that west Side would indemnify ConAgra from any West Side negligence. West Side, anxious to have a company with ConAgra’s deep pockets around to share the $18 million, retorted that ConAgra failed to reveal material information to it about the unstable grain bin. Furthermore, West Side’s indemnification of ConAgra may have been written into the contract, but West Side had never signed the document.

Your customer hired you because you’re an expert at what you do. You have to act like one. If something goes wrong, you’ll surely be judged like one.

The Seventh Circuit was baffled. The injured workers complained that ConAgra had provided them with a dangerous workplace? Of course it did, the Court said. The whole point of hiring a “hot bin” expert was that the bin was dangerous. The Court held that where an owner hires an independent contractor to remedy a dangerous situation, the owner would not be held liable if the feared disaster came to pass. Such a policy would only discourage people with serious or dangerous problems to hire experts to get them fixed.

The Court has just as little patience with West Side’s complaint that ConAgra had failed to disclose information to it about the grain bin’s condition. West Side didn’t exactly say that ConAgra had provided false information. In fact, it admitted that ConAgra adequately answered all of the questions it had put to its client. The problem, West Side argued, was that ConAgra had other information about the dangerous grain bin – specifically, temperature readings from earlier in the month – that it failed to volunteer.

The Court expressed incredulity at the claim. West Side was a self-professed expert in “hot bins.” ConAgra was not. An owner like ConAgra was entitled to assume that when an expert like West Side is hired, the expert will ask for all the information it deems important. In this case, ConAgra did not end up sharing liability with West Side simply because it didn’t answer questions that were never asked.

The Court seemed almost perplexed by West Side’s argument that it had never gotten around signing the contract with ConAgra, so it wasn’t bound by the provision that it indemnify ConAgra from damages resulting from its negligence. That hardly mattered, the Court said. West Side began the work, whether it signed the contract or not. That was enough to signify that it had accepted the contract terms.

So what’s the takeaway for arboriculture professionals? First, be sure the contract is completely negotiated and signed the way you want it. If you leave it for later but begin work now, a court may conclude you had accepted terms you thought were still being negotiated. Second, you’re an expert at what you do. Be certain to gather all of the information you need for the job. When the tree falls on that Brownie troop, you can’t hide behind the owner’s failure to give you information about the condition of the tree that you never asked for.

Jentz v. ConAgra Foods, Inc., Case No. 13-1505 (7th Cir. September 9, 2014). A grain bin in Chester, Illinois, exploded in April 2010, injuring three workers. The month before, ConAgra Foods – the owner of the bin, which was part of a flour mill – discovered a burning smell coming from the storage vessel, which contained wheat pellets. ConAgra hired West Side, which claimed expertise in handling “hot bins.” When work began, West Side hired A&J Bin Cleaning to do some of the tasks. Two of the injured workers, John Jentz and Robert Schmidt, were employees of A&J. The third, Justin Becker, was employed by West Side itself.

ConAgra wanted to salvage as much of the grain as possible, but as pellets were removed from the top more oxygen reached wheat composting at the bin’s bottom. West Side decided to remove some grain via side tunnels. On April 27 West Side detected smoke coming from the bin. Its crew sprayed water on the pellets and used an air lance to try to discover the smoke’s source; the effort failed. Mel Flitsch, West Side’s foreman, told ConAgra to call the fire department. Waiting for firefighters to arrive, Flitsch sent Jentz and Becker into a tunnel, instructing them to remove tools that might impair firefighters’ access. While they were there, the explosion occurred. They were severely injured but survived. Schmidt, who was in an elevator nearby, also was injured, but less seriously.

A Federal district court jury awarded $180 million in damages against ConAgra Foods and West Side Salvage. ConAgra contended that liability rested on West Side, which it had hired to address problems in the bin. For its part, West Side did not contest liability to the workers but contended that it does not have to reimburse ConAgra for the cost of repairing the facility. The injured workers contend that both ConAgra and West Side must pay the full verdict.

The dust may just deflagrate and not really detonate – but the distinction probably makes no difference if you’re the one caught in the fireball..

Held: The Court of Appeals held that ConAgra was not liable. Normally, the appellate panel said, employees of an independent contractor cannot obtain damages from the owner of the premises at which the contractor was working. The injured workers contended that ConAgra nevertheless was liable for failing to provide West Side with a safe place to work. ConAgra responded that of course the grain bin was unsafe — that’s why West Side had been hired to begin with. ConAgra relied on the principle that someone who engages an independent contractor to redress an unsafe condition is not liable when the feared event occurs.

The Court agreed, pointing out that Illinois law held that “in a case involving negligent rendition of a service [by an independent contractor] … a factfinder does not consider any plaintiff’s conduct that created the condition the service was employed to remedy.” Here, ConAgra may have delayed in hiring West Side (it rejected other companies for lack of liability insurance), and it may not have provided all of the information about the bin it had, but that does not matter. The evidence showed that West Side was hired to deal with a hot bin, and all liability therefore is on its account. Having hired a self‑proclaimed expert in hot bins, ConAgra was entitled to assume that West Side would ask for whatever information it needed. The Court said that “[p]eople who hire lawyers rely on them to ask for information material to the situation, and no court would hold a client liable to his lawyer for failing to reveal spontaneously something that the lawyer never asked about; similarly people who hire specialists in controlling the risks of grain storage are entitled to rely on them to know what matters and ask for the material information.”

Finally, ConAgra signed and tendered to West Side a contract containing a promise by West Side to indemnify ConAgra for any damage caused by West Side’s negligence. The jury concluded that West Side is liable under this promise, but West Side argued that it did not return a signed copy of the contract to ConAgra. It agreed to undertake the job, and set to work, but did not sign on the dotted line. The district judge thought this irrelevant, because performance usually is as good as a signature as a way to accept a proposed written contract. The Court of Appeals agreed. Knowing the proposed terms, West Side began the work. That was as good as a signature on the dotted line.

Case of the Day – Monday, January 12, 2015

A MARMOT IS A VARMINT

Cute … but varmints

It seems that these furry little critters called marmots dig holes and generally make pests of themselves. At least, that what Pam Tessman would tell you.

She spent July 4th one year at a Wyoming RV park with her son, where at one point in the day she walked through a field and saw a marmot hole, the very one she later tripped on in the dark.

Of course, the fact she knew the hole was there and that the marmot probably wasn’t in the employ of the park owner, didn’t matter to the limping and litigious Pam — she sued park owner Mary Berry anyway. The alliteratively named Ms. Berry might tell you that Pam was something of a varmint herself. Nevertheless, the jury awarded Pam a cool quarter million dollars at trial (reduced by 25% because the jury figured that she should have remembered the hole in the grassy field from earlier that day).

But the Supreme Court of Wyoming had other ideas. Before there can be liability, the Court said, there has to be a duty. And in Wyoming, a landowner isn’t responsible to protect guests from dangers that were known and obvious. Little furry burrowing animals tend to leave holes that are completely natural, the Court said, as well as open and obvious. There was no reason to hold the RV park owner liable for Pam’s clumsy misfortune, or to sting Mary Berry to line Pam’s pocket.

Berry v. Tessman, 170 P.3d 1243, 2007 WY 175 (Sup. Ct. Wyo., 2007). Pam Tessman was staying at Mary Berry’s RV park. At check-in, Pam asked Mary Berry where she could take her son fishing. Mary Berry pointed Pam to a river just off the property, and Pam followed the directions. She and her son cut behind a bathhouse across several fields, over a broken-down fence and over a set of railroad tracks, to the fishing hole.

Pam saw a lot of adults and kids using the “grassy area” behind the bathhouse to get to and from the river. In fact, on the way back, Pam saw several boys playing by a marmot hole in the field behind the bathhouse. That evening, Pam was watching fireworks when she saw her son was up by the railroad tracks with some children who appeared to be setting off fireworks. Concerned for his safety, Pam left the lit pool area and went out into the grassy area behind the bathhouse to call him back. She stepped in the marmot hole she had seen earlier that day, twisting her ankle.

Pam sued to recover for her injuries. The trial court found in Pam’s favor and awarded her $259,000, which it reduced by 25% for her contributory negligence.

The elements of a negligence action are a duty owed the plaintiff by defendant to conform to a specified standard of care, a breach of the duty by defendant, and that the breach of the duty of care proximately caused injury to the plaintiff. A landowner in Wyoming owes a general duty to act reasonably in maintaining his or her property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk. Landowners have no duty to protect from known and obvious dangers, even those resulting from natural causes.

However, a plaintiff may show that an otherwise naturally occurring condition does not fall within this rule by showing that the defendant created or aggravated the hazard, that the defendant knew or should have known of the hazard, and that the hazardous condition was substantially more dangerous than it would have been in its natural state. Even a naturally occurring, known and obvious hazard that the landowner has not aggravated could result in liability if the landowner were to create an expectation of heightened safety for people on the premises. The Court saw no reason the known and obvious danger rule should not apply to the ubiquitous hazard posed by the holes of burrowing animals.

However, Pam Tessman hadn’t shown that her circumstances warranted a finding that the marmot hole she stepped in was anything other than a naturally occurring, known and obvious danger, from which Mary Berry had no duty to protect her. She made no showing that Mary Berry owed her any other duty that would support a finding of negligence here. The marmot hole was not a hazard she had created. The marmots weren’t domestic animals or pets but wild animals present in the surrounding area, as well as on the property itself.

Simply enough, the record evidence didn’t suggest that Mary aggravated the danger posed by the marmot hole. To the contrary, the trial court found that Mary tried to minimize the danger from such holes on her property by filling them regularly and by having the animals trapped whenever they became a nuisance. A landowner does not have a duty to protect a guest on her property from a naturally occurring, known and obvious hazard she has not aggravated if she has not, through her own undertaking, created an expectation in her guests that they will be protected from such a hazard.

Mary didn’t create or aggravate the marmot hole that caused Pam Tessman’s injuries, nor did Mary undertake any act that could have caused Pam to rely reasonably on a heightened expectation of safety or special protection from marmot holes on her property. Thus, Pam gets nothing.

Case of the Day – Tuesday, January 13, 2015

TALKIN’ ‘BOUT THE BIG “D”

Nothing can come between brothers … except maybe an angry ex.

As brothers, Jerry and Kenneth were tight, just good ‘ol boys down on the farm. Their folks had given them 20 acres each, two small farms next to each other.

Ken got his farm first, and he put up a rickety, crooked fence, one good enough to keep cows penned up but not much as a boundary marker. A few years later, he gave brother Jerry permission to put up his own cattle pen, which attached to Ken’s own wandering fence. The upshot of all this sloppy fence building was that a 2.6-acre parcel belonging to Ken was on Jerry’s side of the fence. So what? They were brothers, after all. Ken didn’t mind, and he and Jerry both used the little piece of land. Jerry built a pond on part of it. Ken harvested some of the timber standing on it, and sold the lumber for profit.

So the boys lived side by side, happily ever after. Well, not quite. Seems after about 20 happy years, Jerry’s wife had had enough of the cows, enough and the ponds, and mostly, enough of Jerry. So it was the big “D” for Jerry, and when the smoke cleared, his ex owned a good chunk of his place.

She didn’t much like the ambiguous status of the 2.6 acres, so she sued Ken. Why not? She had just sued his brother, and look how well it turned out for her! The ex claimed the 2.6 acres by adverse possession. However, it turned out that her ex brother-in-law wasn’t the pushover Jerry had been. The trial court agreed that it couldn’t be adverse possession unless Jerry had held the 2.6 acres in a manner hostile to his brother’s rights. And, after all, they were family.

Simply put, there was no evidence that Jerry had fenced in his brother’s land except with his brother’s permission. Permissive possession, simply put, is not adverse.

Cleveland v. Killen, 966 So.2d 848 (Miss.App., 2007). Ken and Jerry each owned a 20-acre tract of land located next to each other in Neshoba County. Ken’s tract was directly north of Jerry’s, and there was a straight property line dividing the two parcels.

Ken received his land from his folks in the 1960s. When Jerry got his in 1970, he wanted to build a fence for some cows. Jerry got Ken’s OK to “tie on” additional fencing to a fence that Ken had built on his own property, a crooked thing that was sort of parallel to the boundary line, but not intended to represent the boundary line. In fact, it seemed none of the parties knew where the exact boundary line was when Jerry built the fence. Since Ken’s fence spanned the middle of the property, Jerry began at the corners and added fencing eastward and westward to the edges of the property. Combined with Kenneth’s portion, this let Jerry fence his cattle without building a fence across the entire property. But because Ken’s original fence was north of the actual property line, the completed fence separated the 2.6 acres in dispute from the remainder of Ken’s property.

For a long time, there was no conflict about who owned the 2.6 acres now in dispute. Jerry used the land for gardening and for animals, and Ken cut timber on the land and built a gate in the fence so he could run his cattle over to Jerry’s pond. But some 20 years after Jerry built the original fence, he put in a pond, about a third of which was on Ken’s land but on Jerry’s side of the fence. There was no conflict over the pond until Jerry’s wife divorced him and got a remainder interest in his 20 acres. Ex-wife Tommie sued Ken when he hired a surveyor to mark the property and then built a fence that represented the true property line. By then, Jerry was suffering from dementia and didn’t testify. The trial court found for Ken, and Tommie appealed.

Held: The land was not lost to Tommie by adverse possession, the Court of Appeals held, affirming the trial court. The Court found that the evidence was sufficient to show that Jerry had had Ken’s permission to use the 2.6-acre parcel in question. The landowners were brothers who had lived side by side with their families for 35 years with no disputes, there was evidence that Jerry had asked for Ken’s OK to build a fence (which Ken had given), the brothers thereafter used each other’s property, Ken brought his cattle across the land to use the pond, and that Ken even cut down some trees located in the disputed area and kept the profit he received from selling the timber.

As a rule, permissive possession of lands — even if continued for a long time — doesn’t confer title on the person who possesses them until a positive assertion of a right hostile to the owner has been made. If there never had been a request or a grant of permission to use land, the use would not have been permissive, but rather would have been adverse. When a close family relationship is involved, proof of adverse possession is not ordinarily as easily established as it is when the parties are strangers.

Case of the Day – Wednesday, January 14, 2015

THE EAGLE HAS LANDED

Unlike the kid above, our Ralphie wasn’t quick like a bunny when the branch fell.

When the elder Mr. Eagle volunteered to help trim a tree at his church, his son tagged along. It seems that Ralphie was anxious to help Daddy.

Ah, the brashness of youth. The lad (he was 50 years old, but he still lived with mom and dad, so he was unquestionably a kid, albeit a big one), shouldered the three septuagenarians out of the way and climbed the ladder himself. Well, one thing led to another, and the group of tree-trimming amateurs lost control of a limb. The limb fell, the 70-year old man holding the ladder jumped out of the way to avoid being hit, and the falling limb knocked the ladder out of the way. Ralphie fell off the ladder and he landed — hard.

Having his eye on the collection plate, the litigious Eaglet sued the Church, the other retirees and, of course, his own father (with whom he resided) for negligence. He claimed that the volunteers were acting as agents of the church, making the church liable.

The trial court would have none of this, and threw the case out. The Court of Appeals agreed, finding that as volunteers, the tree trimming crewmembers owed each other reasonable care at most. And it wasn’t reasonable to believe the man holding the ladder would stand and take a hit when the limb fell. There wasn’t evidence that any of the trimmers were negligent, so the Church couldn’t be liable.

As for premises liability, the Court said, the evidence showed Eagle had volunteered to help three old men do something dangerous: he should have seen it coming. In reading the decision, one gets the impression that neither the trial court nor the appellate panel thought much of the young Eagle, who horned in on the volunteer effort, ignored his father’s request that he not participate, and then — after getting hurt — suing everyone involved.

Eagle v. Owens, Case No. C-060446 (Ct.App. Hamilton Co., 2007). A small church needed some tree trimming performed. During a Sunday service, the pastor had asked for volunteers to perform the tree-trimming task. The church typically relied on volunteers for landscaping work, including potentially dangerous work such as trimming trees. Merida and Owens volunteered for the task. Both had performed similar tasks for the church on several occasions in the past without incident.

Before leaving the church that day, the two volunteers stood by the tree to examine what had to be done. When Eagle’s father walked by, they recruited him to help them. Eagle’s father was a deacon of the church, an unpaid, rotating position that required him to make decisions for the church’s benefit with the four other deacons. Ultimately, the three men, all over the age of 70, agreed to meet the next morning to perform the task.

When the elder Eagle arrived the next day, he brought his 50-year old son with him. The son thought the other volunteers were too old, so he took over trimming from a ladder perch. Before the younger Eagle began sawing, his father insisted on changing the position of the rope around the limb. Merida remembered telling Eagle’s father that he did not like the change, but he claimed that he deferred to him because he was a deacon. The limb did not fall cleanly, and its branches knocked over the ladder the younger Eagle was standing on. One of the men who had been holding the ladder ran to avoid being struck by the limb. Eagle fell and was injured.

He sued everyone who was there, as well as the church, alleging that they had “carelessly and negligently caused a tree limb to fall and strike” him. He also alleged that his father, Owens, and Merida were acting as agents or employees of the church when the accident occurred, and that the church was responsible for the acts of its agents. The individual defendants moved for summary judgment on the basis that Eagle had assumed the risk of any injury by participating in such an inherently dangerous activity. The church moved for summary judgment on the respondeat superior claim, arguing that it could not be liable where the individual defendants were not negligent and were not agents of the church, and where Eagle had assumed the risk.

The trial court granted summary judgment for the defendants without giving any reasons or issuing a decision. The younger Eagle appealed.

Held: The young Eagle’s wings were clipped. The Court agreed with the trial court’s dismissal, holding that as nonprofessional volunteers, the defendants at most owed Eagle a duty of reasonable care under the circumstances. Eagle did not present any testimony, expert or otherwise, to demonstrate how his father’s, Merida’s, or Owens’ conduct fell below a standard of reasonable care. No one foresaw that the branches on the limb would strike Eagle after breaking off from the trunk, and no one expected Owens to hold the ladder if it swayed while Eagle was on it, because it was obvious that he was physically unable to do so. And if he had stayed to steady the ladder, he likely would have been struck and injured by a large limb.

The Court held that the duty of reasonable care did not require such a foolish act of bravery, despite Eagle’s assertion that he would have steadied the ladder and suffered the blow of the limb if the roles had been reversed. To establish a claim against the church under the doctrine of respondeat superior, the record must demonstrate that a principal-agent relationship existed, and that the tortious conduct was committed by the agent while in the scope of his agency.

Here, the Court said, it did not need to determine whether reasonable minds could have concluded that any of the three men were agents of the church and whether Eagle was injured by acts taken within the scope of that agency, because the individual defendants did not act tortiously towards Eagle in carrying out the task. Where there is no actionable conduct by an agent, there can be no vicarious liability for the principal. Finally, on the claim of premises liability, the Court held that in determining the duty the church owed to Eagle, it had to focus on Eagle’s status as a participant in the tree-trimming task, because his injury resulted from his participation in this task and not from his status as a person present on the church’s property in general.

It was undisputed that Eagle was warned of the danger; that the church had always used volunteers, including Merida and Owens, to perform similar tree-trimming tasks in the past; and that these volunteers had performed in the past without incident. Eagle did not present any testimony from a tree-trimming professional to attack the church’s decision to use these same volunteers to remove this limb. The Court concluded that reasonable minds could come to but one conclusion, and that conclusion was that the church did not breach a duty of care owed to Eagle.

And what good is an expert witness? Primarily, experts testify not to facts, but rather to opinions. Juries like opinions. Opinions sway juries.

In a tree case like today’s from Arkansas, a frolicking bulldozer operator wiped out a bunch of a neighbor’s trees. Clearly, she was entitled to damages. But how much would the damages be? She hired the county extension agent to testify as to the value of the trees that had been cut down. The defendant complained that the expert relied on timber sales reports written by others, but the Court of Appeals accepted his opinion, and in the process explained what type of research process it wanted to see as a basis for an expert opinion.

Of course, the state’s treble damages statute, which multiplied the value of the lost timber by threefold, made the expert’s opinion all that more important to both sides. Incidentally, the defendant tried to argue that there was no proof that the bulldozer operator was his agent, but that was a mere sideshow: the evidence was overwhelming on that point.

Jackson v. Pitts, 93 Ark.App. 466, 220 S.W.3d 265 (Ct.App. Ark. 2005). Richard Jackson owns land just north of land owned by Nora Pitts. Pitts claimed that Jackson or people acting for him bulldozed trees on her land where it borders that of the Jackson. Lloyd Pitts,

Nora’s son, saw John Moore operating a bulldozer in the area of the destroyed timber, which was located on Pitts’s property line with Jackson’s land. Lloyd said he walked along his mother’s land shortly afterward and saw holes where trees had been removed from the bulldozed ground. Another witness saw the bulldozer activity on Pitts’ property, and said that the bulldozer operator told him that he had been directed by Jackson to perform the work. The trial court found that the Jackson and Moore trespassed Pitts’ land and destroyed marketable timber, setting the value of the destroyed timber at $1,157.20. Treble damages allowed under §18-60-102 of the Arkansas Code increased the judgment of $3,471.60. Jackson appealed.

Held: The trial court judgment was upheld. Jackson claimed that treble damages were unjustified, but the Court disagreed. The imposition of treble damages in a trespass action for trees damaged, broken, destroyed, or carried away requires a showing of intentional wrongdoing, although intent may be inferred from the carelessness, recklessness, or negligence of the offending party.

Here, the Court said, the evidence was sufficient to support a finding that an agency relationship existed between Jackson and the bulldozer operator such that Jackson was liable for the operator’s damage to Pitts’ timber. Lloyd Pitts saw the bulldozer on his mother’s property operating in the area of the damaged timber, and saw Moore operating it. Another witness said Moore said he was working for Jackson. Jackson admitted he had hired Moore to work on his property with a bulldozer, and that if any trees had been removed from Pitts’ property, it would have been done by Moore.

Mark Twain says there are none of these …

As for the amount of damages, the Court said, the evidence in each trespass case determines what measure of damages should to be used to value trees damaged, broken, destroyed, or carried away. Timber is generally valued according to its “stumpage value,” which is the value of the timber standing in the tree. Here, Pitts’ expert witness gave testimony of the estimated number of trees destroyed by Moore, and their market value at the time. The evidence was admissible, the Court said, even though the opinion relied in part on hearsay. The expert described the methodology he used to compute timber value within a specified area, which included diameter measurements of randomly-selected trees, an estimate of the timber volume multiplied by the number of trees within a specified area, and the use of a university timber market report to obtain an estimated market value.

What’s more, the Court observed, the expert testified he personally walked the area to conduct his measurements and testified he walked off the area that was bulldozed, and then went into the woods next to that area to measure a similar amount of land and counted the trees within it. The Court said an expert witness may base an opinion on facts or data otherwise inadmissible, as long as the facts or data are of the type reasonably relied on by experts in that particular field.

Case of the Day – Friday, January 16, 2015

WHERE’D THE TREES GO?

The Sanders were promised this …

Don and Susan Sanders loved the beautiful wooded subdivision in Grapevine, Texas, where they had bought their new house. The helpful salesperson had assured them that developer Weekley Homes intended for the subdivision to have a wooded, country atmosphere and “would take ordinary care” to preserve existing trees. After all, the sales flack with treacly sincerity, Weekley planned that the amenities for the subdivision would include wooded home sites. Not to worry, the syrupy agent smarmed them, because even if this weren’t so, everyone knew that the City of Grapevine, Texas, had a very tough tree ordinance which would be enforced strongly against Weekley.

Well, apparently not. The ordinance had teeth like a crocodile, but that’s not much solace unless the city enforces its terms. Here, as soon as the Sanders moved in, the trees started moving out. They complained that Weekley apparently had no intention of complying with the promises to keep the trees standing – they were tipped off by the shriek of the chainsaws – and the City seemed to have no intention of enforcing the tree ordinance. The Sanders tried to resolve the problem by writing a few letters and attending City Council meetings, but all that bought them was harassment by the City and the developer.

... but they ended up with this.

So they sued, going after the developer for misrepresentation and after the city and a gaggle of city officials for not enforcing the tough tree preservation law they had heard so much about. There’s nothing that’ll wake up a developer and city officials like the robust aroma of a freshly filed lawsuit.

Weekley apparently responded rather weakly, but the City took strong expection to the suit. Grapevine claimed it was immune from liability to its citizens for the City’s failure to enforce its tree laws. In other words, if city officials chose to look the other way when Weekley cut trees down daily, the Sanders had just better get used to the unfiltered Texas sun.

The Court of Appeals agreed, insofar as money damages were concerned. The Texas Tort Claims Act protected Grapevine officials. But the Sanders had asked for a declaratory judgment, too. Although their filings were not all that clear, the Court surmised that the Sanders wanted a judicial finding as to what rights they had, if any, under the City’s tree law.

Grapevine was not immune from a declaratory judgment action, the Court held. And while there are no money damages awarded for a declaratory judgment, a clear judicial finding that that the City fell down on the job of enforcing its ordinances could have substantial political effects. What mayor wants a judicial finding that he or she hasn’t enforced a law that most citizens fully support?

Sanders v. City of Grapevine, 218 S.W.3d 772 (Ct.App. Tex., 2007). Don and Susan Sanders sued the City of Grapevine, Texas, and a number of individuals over the City’s alleged failure to enforce its tree preservation ordinance. They had bought a home constructed by David Weekley Homes in the Silverlake Estates Subdivision, primarily due to its “wooded” and “country atmosphere.” The Sanders claimed that a sales consultant for Weekley Homes had assured them that Weekley Homes intended for the subdivision to have a wooded, country atmosphere, that Weekley Homes “would take ordinary care” to preserve existing trees, that the City of Grapevine had “an extremely tough tree ordinance,” and that the amenities for the subdivision would include wooded home sites.

But after they moved into their new home, it became clear to them that Weekley Homes had no intention of complying with, and the City had no intention of enforcing, the tree ordinance, after Weekly Homes cut down numerous trees within the subdivision. The Sanders brought claims for breach of contract and local tree preservation act violations against Weekley Homes — and for fraud, negligence, and negligent misrepresentation against all of the defendants — due to Weekley Homes’s failure to comply with, and the City’s failure to enforce, the City’s tree ordinance. They alleged the City was liable under §101.0215 of the civil practice and remedies code for damages arising from its governmental function of enforcing the tree ordinance. The Sanders also asked for a declaratory judgment.

The City argued that the Sanders’ claims against it should be dismissed because the City is entitled to governmental immunity. The individual defendants filed a motion to dismiss the claims against them with prejudice under the election of remedies section of the Texas Tort Claims Act. The trial court agreed, and the Sanders appealed.

Held: The Court of Appeals held that the city was immune from liability to the Sanders for negligence and fraud claims under the Texas Tort Claims Act, but it was not immune to a declaratory judgment action.

The Court observed that in determining whether a city is subject to suit and liability under the Texas Tort Claims Act, the Court of Appeals must first determine whether the alleged conduct falls within the list of governmental functions listed in the Act, and if it does, the Court must then look to see whether the conduct falls within one of the other provisions of the Act that waives immunity. Here, the Court said, the City’s alleged conduct in failing to enforce a tree preservation ordinance clearly did not fall within the area of conduct for which governmental immunity was waived under the Texas Tort Claims Act. Waivers of immunity for negligence referred to conduct involving property damage, personal injury, or death, not alleged negligence in enforcing a statute on tree preservation. What’s more, the Act did not waive immunity for intentional torts, precluding an immunity waiver as to the fraud claim.

The Sanders also sued for a declaratory judgment determining what rights they had as homeowners under the City’s tree preservation statute. The Court agreed with them that the City was not immune from such an action, holding that a party does not need legislative permission to sue a governmental entity to determine its rights under a statute or ordinance, because the declaratory judgments action did not seek to impose damages or other liability on the city.

Case of the Day – Tuesday, January 20, 2015

TRESPASSERS W

Trespass … the concept has been around for a long time. The Israelites trespassed in the Promised Land. Just ask the residents of Jericho. The Romans trespassed throughout the known world. The Pilgrims trespassed on some prime real estate, as the descendants of the Wampanoag tribe will attest. Piglet, Winnie the Pooh’s sidekick, explained to the befuddled bear that his ancestor, “Trespassers William,” whom was remembered in the Hundred Acre Wood by a memorial sign emblazoned with “Trespasser W.”

Most famously, Jesus advised us to forgive those who trespassed against us. Alas, as today’s case illustrates, that advice – like much of His teachings – are honored in the breach.

Trespass is most readily defined as unauthorized personal intrusion on land in possession of another by a wrongdoer, or by his failure to leave such land, or by throwing or placing something on such land, or by causing the entry of some other person onto such land. Because the law of trespass pops up time and again in tree cases – where some canny lawyer tries to turn the intrusion of branches over or roots under the property of another person into a trespass – it’s a good idea to brush up on the doctrine every now and then.

So pour yourself a glass of Soda Rock cabernet sauvignon, vintage 2010, and consider a recent case involving boundary dispute between Napa Valley vineyard and adjacent winery operators. About 15 years ago, Ken and Diane Wilson bought a decrepit century-old winery building north of San Francisco. Over a decade, they restored it into a thriving winery, complete with tasting rooms and amusements for oenophiles.

The rear of the winery building backs up to a vineyard belonging to Belle Terre Ranch, with a pathway or “avenue” between. A line of oak trees runs behind the winery within about four feet of the building. Thanks to the ubiquity of satellites (look up and smile!), we are able to easily understand the layout, and thus the nature of the Wilsons’ problem with the neighbors.

During the reconstruction, the Wilsons regularly used the “avenue” behind the winery building for deliveries and to allow access for heavy equipment involved in the reconstruction. Belle Terre also used the avenue for maneuvering its equipment in tending to the vineyard. Belle Terre didn’t complain, because it was just trying to be neighborly. Belle Terre’s permission to use the avenue was not intended to be perpetual, but rather just “to repair the winery.”

When the Wilsons applied for permits to complete the winery renovation, Belle Terre raised concerns with the county about trespass by wine-tasting patrons. One of its concerns was that a “survey should be done before a permit is issued.”

Knowing they would need a survey to plan the reconstruction, in January 2003 the Wilsons commissioned a surveyor. His survey showed the Belle Terre-Soda Rock boundary was approximately 12 to 13 feet behind the rear wall of the winery building.

Five years later, Belle Terre complained to the Wilsons that a cement truck involved in the winery renovation was trespassing, kicking up too much dust on the avenue, which was settling on the grapevines, damaging the crops. Wilson replied that the property line was about nine feet out from the winery, saying he had had it surveyed. After this confrontation, Belle Terre hired a different surveyor to find the boundary. The new survey concluded the property line was approximately 9.4 feet closer to the back of the Wilsons’ winery than the 2003 Story survey had shown, and it closely corresponded to the line of oak trees.

Belle Terre had an attorney write a letter to the Wilsons in August 2008, telling them to stop trespassing on Belle Terre’s property. When the Wilsons continued to use the avenue, Belle Terre filed suit to quiet title to the disputed strip of land and for trespass. Belle Terre sought a permanent injunction barring the Wilsons from trespassing, as well as attorney fees and costs. The complaint did not request damages.

The Wilsons claimed they owned the nine-foot strip of land, and denying they were claiming any interest in Belle Terre’s property. At trial, however, the Wilsons claimed in the alternative a prescriptive easement over the disputed strip of land. The trial was a battle of the surveyors. When the dust settled (on the grape leaves, no doubt), the trial court found in favor of Belle Terre, and issued judgment quieting title and granting permanent injunctive relief against further trespass by the vintners. The court also awarded $1.00 in nominal damages for past trespass, and upon that basis awarded Belle Terre its attorney fees in the amount of nearly $117,000 under Code of Civil Procedure § 1021.9.

On appeal, the Wilsons argued vociferously against the propriety of the $1.00 in damages, for the very good reason that if there were no damages awarded, there could be no attorney’s fees awarded.

The California Court of Appeals upheld the judgment in favor of Belle Terre Ranch, ruling that the Wilsons were permanently enjoined from trespassing in Belle Terre’s vineyard. Likewise, the Court said, where there’s a trespass, there are always damages, even if they’re not proven. Property owners possess a “dignitary interest in the inviolability” of their property rights, the Court said. Thus, “every trespass is an invasion of a legal right of another and carries with it the right to nominal damages,” even if actual damages weren’t proven.

Such damages were not proven, in this case, probably because damages were an afterthought to Belle Terre – it started out the case just wanting a court to tell Wilsons to swill their wine somewhere besides on the “avenue.” We suspect that only when their lawyers’ bills started skyrocketing past $10,000 to $50,000 to north of $100,000, did the notion of getting someone else to pay the mouthpiece take hold.

About then, we surmise, someone in the offices of Belle Terre’s lawyers found a provision in California law that held that in “any action to recover damages to personal or real property resulting from trespassing on lands either under cultivation or intended or used for the raising of livestock, the prevailing plaintiff shall be entitled to reasonable attorney’s fees in addition to other costs, and in addition to any liability for damages imposed by law.” The law was intended to give farmers and ranchers a meaningful remedy for damage caused by trespassers breaking through fences to take motor vehicles onto private property. The statute was designed “to enhance the ability of ranchers to sue trespassers for damages, particularly in those cases where the rancher must now either compromise a significant portion of a valid claim by suing in small claims court … or by spending a major share of the recovery to pay his or her attorney.” Sweet! Suddenly, money became a driver in the case, at least enough money to pay learned counsel.

Because Belle Terre did not focus on damages, the trial court just found nominal damages of a buck. That was enough, the judge said, to assess the $117,000 in legal fees against the Wilsons.

Not so, the Court of Appeals held. After a lengthy opinion that appeared to be thoroughly crushing the Wilsons’ grapes, the Court revered the legal fees holding, thus turning a Mad Dog 20/20 opinion into a Clos Des Papes Chateauneuf-du-Pape 2012. The Court concluded that Cal. CCP § 1021.9 permitted the award of attorney fees only where there had been real damages, not just nominal or assumed damages.

Here, the Court said, the parties were primarily litigating a boundary dispute upon which a trespass claim depended, not the classic trespass case that an aggrieved rancher on a budget might need Cal. CCP § 1021.9 in order to pursue. There was no evidence of actual damage to the Belle Terre vineyards, and thus, while the $1.00 nominal damages stood, the attorney fees did not.

The lesson here – never overlook the benefit of proving actual damages. No doubt Belle Terre started out disclaiming any interest in proving damages. Had it proved even a dollar’s worth of damage from dust on the vines, ruts in the avenue, or anything else, its legal fees would have been covered.

The winery building backs up to a vineyard belonging to Belle Terre Ranch, with an unpaved “avenue” between them. A line of oak trees stands behind the winery within about four feet of the building. During the reconstruction, the Wilsons used the “avenue” behind the winery building for deliveries and to allow access for heavy equipment. At the same time, Belle Terre used the avenue for maneuvering its equipment in tending to the vineyard. Belle Terre didn’t complain about the Wilsons’ usage for construction, but the permission was not intended to be perpetual.

The Wilsons commissioned a survey in order to plan the reconstruction of the winery. The survey showed the boundary was approximately 12 to 13 feet behind the rear wall of the winery building.

In about 2008, Belle Terre complained to the Wilsons that a cement truck involved in the winery renovation was trespassing, kicking up too much dust on the avenue, which was settling on the grapevines, damaging the crops. At this time, Belle Terre hired a different surveyor to find the boundary. The new survey concluded the property line was approximately 9.4 feet closer to the back of the Wilsons’ winery than the 2003 Story survey had shown, and it closely corresponded to the line of oak trees. After Belle Terre’s demands that the Wilsons stop using the avenue went unheeded, Belle Terre filed suit to quiet title to the disputed strip of land and for trespass. Belle Terre sought a permanent injunction barring the Wilsons from trespassing, as well as attorney fees and costs. The complaint did not request damages. The trial court found for Belle Terre, rejecting the Wilsons’ survey as flawed. It quieted title and granting permanent injunctive relief against further trespass by the vintners. The court also awarded $1.00 in nominal damages for past trespass, and upon that basis awarded Belle Terre its attorney fees of about $117,000.

Napa Valley – idyllic, except when litigation rears its ugly head.

The Court of Appeals upheld the judgment in favor of Belle Terre Ranch, enjoining the Wilsons from trespassing in Belle Terre’s vineyard. It held that Belle Terre met its burden of proving the Wilsons intentionally, recklessly or negligently entered Belle Terre’s property or caused another to do so. There was evidence the Wilsons continued to trespass on Belle Terre’s property even after Belle Terre’s lawyer sent them a letter demanding that they cease. Trucks engaged in the Wilson remodel were photographed trespassing on Belle Terre’s property even past the nine-foot disputed area, and a dumpster used for the Wilson construction was placed over the nine-foot line. Belle Terre testified that the Wilsons discharged what appeared to be “gray water” onto Belle Terre’s property and also destroyed a wildlife habitat. A construction worker from Soda Rock also was seen trespassing into Belle Terre’s vineyard. The Wilsons argued there was “no evidence” linking the work performed by “unidentified construction workers” with the Wilsons’ land or improvements, but the court called this argument “patently absurd.”

The Court held that every trespass upon real property the law presumed nominal damages where actual damages are not shown. “Because property owners possess a ‘dignitary interest in the inviolability’ of their property rights. The Court said that damages, even though nominal, are considered necessary to support a judgment in a trespass tort action since it is essentially an action for damages.

However, the nominal damages will not support an award of legal fees. Here, nominal damages were awarded without proof of actual injury to real or personal property. Based on the plain language of the statute, the Court concluded an award of attorney fees is not available on the facts before us.

Nominal damages have been described as “symbolic” and are often awarded “[w]here there is no loss or injury to be compensated but where the law still recognizes a technical invasion of a plaintiff’s rights or a breach of a defendant’s duty.” In this case, Belle Terre did not present any evidence of damages to personal or real property nor were compensatory damages claimed in the prayer for relief. The Court said that award of nominal damages in the trespass action was intended to redress intangible harm to the “dignitary interests” of the landowner personally, and not injury to the land or to his personal property. In this case, the parties were primarily litigating a boundary dispute upon which the trespass claim depended. Although the Wilsons’ acts of trespass onto Belle Terre’s land arguably supported an award of nominal damages, the Court said, there is no evidence of any actual damage to Belle Terre’s property that would trigger the provisions of section 1021.9.

In cases falling within the intent of the statute, there must be some tangible harm done to real or personal property as a result of the trespass.

Case of the Day – Wednesday, January 21, 2015

FALL IN MOOSE RIVER, MAINE

Not Bullwinkle — Moose River is named for a generic moose, we understand.

Drive up U.S. Route 201 a pretty good way, up past Jackman and Wood Pond, and you’ll eventually happen on beautiful little Moose River, Maine, population 219. Located about 10 miles as the crow flies from the Canadian border, the little town is everything simple and natural that a harried city dweller could imagine about such a bucolic place.

Being a little backwater has some disadvantages. Too small for municipal buildings, the town officials are expected to greet the public and transact the town’s business from their homes. That’s what Elizabeth Bell, the town clerk, did. One January day in 2004, Linda Rodriguez – who had just moved there from Arizona and perhaps was unfamiliar with the concept of winter – was leaving Ms. Bell’s home cum office when she slipped on the steps. Unfortunately, the handrail was missing. Ms. Bell had noticed it was wobbly, and her hubby removed it for repair. Being a spouse of the male persuasion, he hadn’t quite gotten around to fix it yet. The playoffs were on the weekend before, you know.

Ms. Bell didn’t have homeowners’ insurance against claims for personal injury because she believed “neighbors don’t sue … neighbors.” Oops. It turns out that some of them – the ones from Arizona – do. Ms. Bell defended by claiming that she was protected by governmental employee immunity. The Town, on the other hand, argued it was her house, and the Town had no control over it, so it had no liability. We guess it’s “every dog for himself” when the subpoenas start flying.

Ms. Rodriguez – having just moved in from sunny and hot Arizona – apparently was surprised to find the white stuff was slippery.

The trial court found that Bell was not immune from liability but the Town was. On appeal, the Maine Supreme Court agreed that Ms. Bell’s failure to replace the handrail had nothing to do with her government function. As for the Town, the Court said, like it or not, Ms. Bell’s place was a public building and the Town could be liable for negligence. And judging from the comments on the news report, some Maine residents see it as another case of “flatlanders” messing things up in Maine.

Rodriguez v. Town of Moose River, 922 A.2d 484 (Sup.Ct. Me., 2007). The Town of Moose River has a population of about 230 residents. Like other small towns in Maine, the Town does not own an office building suitable for conducting Town business. As a condition for holding office, the Town required the town clerk to conduct official duties at her personal residence. The Town conducts its selectmen’s meetings at a selectman’s home.

In March 2000, Bell was elected town clerk and tax collector. Accordingly, she opened her home to the public to conduct Town business. The Town brought its computer, file cabinets, desk, and office supplies to Bell’s home. She placed a sign on the side of her house, which read, “Moose River Town Clerk and Tax Collector.” Bell received about $300 per month as compensation for her work for the Town. During an average year, approximately 200 people would enter Bell’s home to conduct Town business.

Moose River is used to different day-to-day hazards than steps without handrails.

On January 23, 2004, Rodriguez went to Bell’s home with her husband and two children to register two motor vehicles. Rodriguez had called Bell beforehand to schedule the appointment. There was some snow and ice on the sides of the steps leading into Bell’s home, but the middle of the steps was clear. During the registration process, Rodriguez had to leave Bell’s home to retrieve her checkbook. After conducting her business, Rodriguez exited the home carrying one of her children in a car seat. She fell when she stepped down to the middle cement step outside of Bell’s home. Rodriguez injured her leg as a result of the fall.

Prior to Rodriguez’s fall, there had been a handrail on Bell’s front steps. Bell’s husband had removed the handrail when he noticed that it was wiggling. Bell did not check with the Town before removing the handrail. Rodriguez sued Moose River and Bell, claiming they had been negligent in failing to properly maintain Bell’s property. Rodriguez argued that had there been a handrail in place, it could have assisted her in walking down the steps or she could have grabbed it to prevent her fall. The trial court denied Bell’s motion for summary judgment, holding that she was entitled to discretionary function immunity. The trial court granted the Town’s motion for summary judgment, finding that Bell’s residence was not a “public building” pursuant to the immunity exception of the Maine Tort Claims Act, 14 M.R.S. § 8104-A(2). Bell and Rodriguez both appealed.

Held: Bell was denied immunity, and the dismissal of the Town as a defendant was reversed. The Maine Supreme Court said that whether discretionary function immunity applies depends on whether the challenged act, omission, or decision (1) necessarily involves a basic governmental policy, program or objective; (2) is essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of them; and (3) requires the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved. Of course, the governmental agency involved possesses the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision.

The question with respect to Bell’s entitlement to discretionary function immunity, the Court said, was whether Bell’s failure to install or replace the handrail on her front steps constituted a discretionary act “reasonably encompassed” by her duties as the town clerk and tax collector. Generally, operational decisions, such as those regarding the safety or maintenance of premises, fall outside the scope of discretionary function immunity, unless those decisions serve some other government policy or purpose. Here, Bell’s decision on the handrail did not involve a basic governmental policy related to performing duties as the town clerk, was not an act essential to the realization or accomplishment of such a policy, and did not require her to exercise a policy evaluation, judgment, or expertise. Rather, Bell’s choice not to replace the handrail resembles a decision ordinarily made by the general population, relating to the duty of care a landowner owes to the people who enter upon his or her property. Thus, she was not entitled to discretionary function immunity.

However, Bell was entitled to limited liability as a government employee. Pursuant to 14 M.R.S. §8104-D, the personal liability of an employee of a governmental entity for negligent acts or omissions within the course and scope of employment are subject to a limit of $10,000 for any claims arising out of a single occurrence. Because Bell was required to open her home to the public as part of her duties as town clerk and tax collector, the Court found, her failure to replace the handrail on her stairs was an act within the scope of her employment.

As for the Town, the Maine Tort Claim Act holds that governmental entities are liable for negligent acts or omissions in the construction, operation or maintenance of any public building or the appurtenances to any public building. For all intents and purposes, Bell’s home functioned as a public building as well as her private residence. By its plain meaning, a “public building” is “[a] building that is accessible to the public; esp[ecially] one owned by the government.” BLACK’S LAW DICTIONARY 1243 (7th ed.1999). The function a building performs and its character in relation to the public are important factors in determining whether a building is “public.” Here, the residents of Moose River had no choice but to go to Bell’s home to perform legally necessary Town business, such as registering motor vehicles and paying taxes. Bell put a sign on her home, allowed residents to come into her home to conduct official Town business, and did not restrict her hours of service. The Court concluded that on the specific facts of this case, Bell’s home was a “public building” within the meaning of the Tort Claims Act.

Case of the Day – Thursday, January 22, 2015

DOING YOUR DUTY

We don’t know … in fact, we’re not sure who he is. But the Rhode Island Supreme remained firmly in control – although with teeth gritted – in today’s decision.

Judges must remind themselves of that often, as they are called upon to apply laws they believe are ill-conceived in cases where the outcome seems less than just to them. The Rhode Island Supreme Court faced that unpleasant task recently, being required to send an injured citizen home empty-handed after an accident at a state facility. The Rhode Island statute in question, the State’s Recreational Use Statute, gives unusually broad immunity to governmental units, classifying the people who use parks and other facilities as little more than trespassers.

Agree or not with the Court’s discomfiture at treating a user of a state recreational facility as a trespasser, one must nevertheless admire the Court’s careful application of the law, coupled with its repeated solicitation of the legislature to correct what a majority of the state’s high court sees as short-sighted policy. Clearly, the judges didn’t like what the law compelled them to do … but they saw the only remedy for that as laying with the legislature.

Labedz v. State, 919 A.2d 415 (Sup.Ct. R.I. 2007). Antonina Labedz was walking along a concrete path at Scarborough Beach, a state-owned beach located in Narragansett, Rhode Island. She tripped on an uneven surface and fell to the ground, breaking her wrist. She sued, alleging the State was negligent in “permitting a dangerous uneven condition to exist on a portion of walkway and failing to warn invitees … of the dangerous condition on the premises.” The trial court found that the State was shielded from liability by virtue of the Recreational Use Statute. Labedz appealed.

How did Ms. Labedz miss that hole? Or was the City negligent? We’ll never know, because sovereign immunity stopped this lawsuit in its tracks.

Held: The State was not liable. Labedz argued that the Supreme Court should reverse prior cases which gave the State broad exemption from liability. But the Court rejected her position, noting that it had been unequivocal in its view that the unambiguous language of the 1996 amendment to the Recreational Use Statute clearly reflects the General Assembly’s intent to extend to the State and municipalities the limitations on liability afforded by that statute, most recently in Lacey v. Reitsma. The Court took the opportunity again to note its “concern about the troubling result that we felt obliged to reach by virtue of our reading of the Recreational Use Statute, and we urged the General Assembly to revisit the provisions of that statute concerning state and municipal immunity.” The Court felt uncomfortable with a statute that classified users of state and municipal recreational sites “as though they were trespassers.”

Labedz also argued that the trial court was wrong to grant summary judgment where the State could have been found liable if its conduct had been willful or malicious. She had alleged as much in her complaint, but she advanced no evidence to support her claim. But Labedz argued that it was the jury’s duty to find whether the conduct had been willful or malicious, and the trial court shouldn’t have taken away that duty by granting summary judgment without a trial. The Court ruled that if the facts were not genuinely disputed, as in this case, the law is pretty settled that a trial court may proceed to determine the existence of any legal duty without assistance from the jury.

Here, Labedz couldn’t point to any evidence that suggested the State acted willfully or maliciously, as those terms are used in the Recreational Use Statute. Summary judgment for the State was appropriate, albeit not cheerfully granted.

Case of the Day – Friday, January 23, 2015

I FEEL PRETTY, OH SO PRETTY …

Hawkins v. McGee – the case of the hairy hand

There’s always a tension between the value that a lover of the land places on his or her trees and the price tag affixed to those same trees by the green-eyeshade crowd of financial experts testifying in some cold courtroom.

The general rule is that the measure of damages when trees are wrongfully cut should be the difference between the value of the property before the trees were removed and the value after the trees are taken down. Fans of the ol’ case of the hairy hand (Hawkins v. McGee) from law school remember the general diminution of value concept. Notwithstanding this staple of first-year contracts class, courts in many states have carved out exceptions to the rule for situations just like today’s case.

The problem usually arises when only a relatively few trees of limited commercial value are removed or destroyed. In today’s case, an Episcopal Church lost 22 small trees when a contractor dumped too much fill dirt – taken from a road construction project – around their bases. The Church proved in court that replacing the trees — a couple cherry trees and a score of red oaks — would cost just over $17,000. But the trial court threw the case out, because it believed that the replacement costs weren’t relevant. Rather, the trial court said, the Church was obligated to prove how much less its land was worth with the trees gone.

The “tree volcano” … pile dirt around the base, and suffocate the sapling. The Church lost 22 trees this way.

Holy birch bark! The problem was that the worth of the property hadn’t fallen much, it being close to a road and of limited use (there’s not that much of a market for church properties). But the Church didn’t want the diminution in property’s value for its collection plate: it wanted its trees back. The Minnesota Supreme Court had mercy on the Church, holding that where the trees served a function that was primarily aesthetic, replacement cost was a fair calculation.

Sometimes justice can’t be done by using the cold, analytical diminution-of-value approach. Occasionally, the wronged owner just plain likes the trees that had been taken, and who’s to say that because the loss may be measured psychologically rather than economically, the damaged party shouldn’t be compensated. We always thought that in such cases, the wrongdoer should be held to lose much of his or her moral standing to complain about how injured the injured party is. In this case, the Court said, that the owner’s enjoyment of the trees might not be quantifiable in a real-estate-value analysis just didn’t matter. (The second case we studied in law school, Peevyhouse v. Garland Coal & Mining Co., has always illustrated the mischief that can be done when a court ignores the aesthetic expectations of the wronged party).

The decision is necessary in the world of tree law, because otherwise, too many cases would founder on the rocks of damages: too many malefactors could cut down too many trees, and the likely penalties, even with treble damages available, would not deter the conduct.

A grove of trees was located at the north end of the lot. In the process of grading, McCrossan dumped fill around the base of the trees, which the church argued caused the trees — two black cherry trees and twenty red oaks — to suffocate and die. The church’s expert testified that because of the variety, size, and condition of the trees, they had a total value of $17,267. The church asserted that the grove of trees not only acted to screen the area from heavy traffic on two sides, but also gave the area a natural, pleasing, aesthetic, wooded atmosphere. The trial court directed a verdict for C.S. McCrossan on ground that church failed to prove damage based on diminution in value of real estate.

The church appealed.

Held: The decision was reversed. The Minnesota Supreme Court ruled that the proper measure of damages for negligence in suffocating the trees was the replacement cost of trees rather than merely the loss of value of the real estate, notwithstanding the inability of the church to prove that destruction of trees diminished the value of the property as a whole. The replacement cost of trees that have an aesthetic value to the owner as ornamental and shade trees or for purposes of screening sound and providing privacy may be considered in determining damage incurred from the destruction of the trees, to extent that the cost is reasonable and practical.

Although evidence may be presented in rebuttal that the effect on the value of land as a whole is minimal, it is for the jury to balance elements of damage in arriving at a just and reasonable award.

Case of the Day – Monday, January 26, 2015

HEY, BUDDY, THAT’S PERSONAL!

When most people think about lawsuits, they focus on who won and who lost. But as important about issues of liability – who owes whom and why – can be question of how much the who owes the whom.

The win-loss is important, but ask the New England Patriots: even if you win, if the final score isn’t decisive enough, it can … well, leave you feeling a little deflated.

So often, we don’t just talk about liability – we talk about how the damages are figured, too. A case we worked on a few years ago shows us why that’s important.

A tree service company sent a crew to an address to remove a maple on the front lawn. Instead of going to 1553 Main Street, the crew mistakenly went to 1533 Main Street. That house, coincidentally, also had a maple tree in its front lawn, a magnificent and healthy specimen that the homeowner loved very much.

You can guess what happened. While the homeowner was obliviously toiling in his of-fice 10 miles away, the tree cutting crew made short work of the beautiful maple. When the owner arrived home that evening, his arboreal pride and joy was nothing but a stump and some sawdust.

There was no question about liability: the tree service company goofed. But how much to pay for the tree? Stumpage value makes no sense. The homeowner wasn’t raising the tree to sell the timber. Replacement cost for the tree might be a fairer measure. However, the largest tree that could be planted for the homeowner – with costs of a few thousand dollars – will not begin to replace the lost tree.

In our homeowner’s case, the measure of damages we finally settled on was a real estate appraisal that concluded that the value of the home had been lessened by about $17,000 by the removal of the mature tree.

Today’s case considers what might happen if the removal of the trees does not diminish the value of the property. A man named Chung bought a parcel of land for a home. When he had a tree cutting service clear the land for construction, the cutters crossed the line onto Rora Park’s land, and removed about 560 trees. The decision only implies this, but it appears that the “accident” might not have been accidental at all. Rather, Chung may have steered the cutters in the wrong direction in order to improve the view from his land.

Whatever the reason, the liability was certain. The problem arose because removing 560 trees didn’t really decrease the value of Rora Park’s land at all. Hard to believe, but then, Alaska is a pretty big place. So Ms. Park demanded restoration damages, payment of the cost of restor-ing the property by planting new trees. That would have been about $400,000. The trial court granted damages equal to the cost of replanting 50 trees, but the Alaskan Supreme Court reversed.

It seems that if the wronged property owner doesn’t have a “reason personal to the land-owner for restoring the trees,” an Alaskan court won’t use that measure of damages. In this case, Ms. Park waxed eloquent about how that she had once had cancer, and “this natural beauty of my yard is [a] healing spot for me, and . . . after work I come by, see my property and see the natural beauty and the trees and all that[. W]hen I [saw] that all cut out it just [made] me very – [it] just [broke] my heart, and then very angry . . .” Unfortunately for her, she later tried to downplay how often she visited the property.

The trial court wouldn’t let her have it both ways, and found that she hadn’t justified restoration damages. But, apparently troubled by Ms. Parks’ neighbor getting away with a fast one, the trial court nevertheless awarded her restoration damages anyway. It may have seemed like justice, but it wasn’t the law.

Chief Justice Oliver Wendell Holmes, Jr.

The Alaskan Supreme Court said that restoration damages could be awarded only if Park had a “reason personal” for restoring her property. Because she failed to prove she had such a reason, she ended up being entitled to pretty much nothing.

There’s something not right about letting a slippery character like Chung pull a fast one, cut down 50 of the neighbor’s trees for a better view, and not have to pay damages for it. It reminds one of a quotation attributed to Oliver Wendell Holmes, Jr: This is a court of law, young man, not a court of justice.

Chung v. Park, 339 P.3d (Sup.Ct. Alaska, 2014). Landowner Rora Park sued her neighbor Christopher Chung for trespass, alleging that he cleared about 50 trees from her property without permission. The trial court found that the tree cutting did not diminish the property value and that there was no reason personal to the landowner for restoring the trees. But the trial judge nevertheless awarded damages equal to the cost of restoring 50 trees on the property.

Ordinarily, a landowner damaged by a trespass may recover either the loss in property value or reasonable restoration costs. But restoration costs are inappropriate if they are disproportionate to the loss in property value, unless there is a reason personal to the landowner for restoring the land. We thus conclude that we must vacate this award.

Chung hired a company to build the foundation of his new house. As part of that project, the contractor agreed to clear trees and other vegetation from the lot. Aerial photographs indicate that some trees were removed from Park’s property near the border of Chung’s lot between August 2008 and the end of September 2008, and more trees were removed between 2008 and 2009. The trees appear to have been removed more or less directly behind the house built on Chung’s property. Timber debris, presumably from the cleared trees, was also discovered buried on Park’s property. An expert witness hired by Park estimated that 562 trees were cleared from about a third of an acre of Park’s property. He calculated that it would cost over $400,000 to restore the property to its former condition. But Chung’s expert witness testified that the market value of Park’s property was likely not affected by the removal of trees.

The trial court found Chung liable for the trees removed from Park’s property. Although the court acknowledged that Park had not proved that the tree cutting reduced the value of her property and found that Park had no reason personal for replacing the trees, it nevertheless concluded that “it would be reasonable both aesthetically and legally to award damages that would permit replacement of trees on that first portion of the lot that can be clearly shown to have been scraped clean as of September 27th, 2008.” The court therefore awarded Park the cost of replacing 50 trees, $23,500. Because the court found that Chung’s trespass was intentional, it awarded treble damages under AS 09.45.730.

Chung appealed.

Held: The Alaska Supreme Court vacated the damage award. It held that a party who is injured by an invasion of his property not totally destroying its value may choose as damages either the loss in value or reasonable restoration costs. But reasonable restoration costs are an inappropriate measure of damages when those costs are disproportionately larger than the diminution in the value of the land and there is no reason personal to the owner for restoring the land to its original condition. A reason personal is one that is “peculiar or special to the owner.” The Court said “We require the landowner to demonstrate a reason personal because we believe it indicates circumstances where the owner holds property primarily for use rather than for sale and where the owner is likely to make repairs with the restoration costs award rather than to pocket the funds and enjoy a windfall.”

During trial in this case, Park tried to establish a reason personal for replacing the trees that Chung had allegedly removed. She talked about having had cancer, and relying on her property as a “healing spot for me.” But she also downplayed her visits to the property later in the trial. As a result, the court found that Park had not established a reason personal for restoring her property.

According to the unrebutted testimony of Chung’s expert witness, the removal of trees from Park’s property did not appreciably affect the value of her property. The trial court accepted that testimony in its findings of fact. Therefore, the Supreme Court concluded, the damages the trial court awarded – $23,500 before trebling – were disproportionate to the diminution of the property value. The Court said that the trial court could award restoration damages only if it found that Park had a reason personal for restoring her property. Because it did not, the trial court’s award of compensatory damages that exceeded the diminution in the market value of Park’s property was not appropriate.

Case of the Day – Tuesday, January 27, 2015

ILLEGAL CONTACT

It’s Super Bowl week, and we celebrate by considering one of the Cardinal rules of trespass. Today we’re discussing illegal contact.

Usually illegal contact, that is, trespass to trees — where someone enters someone else’s land and cuts down trees without any right to do so — are pretty cut and dried. But not all trespasses are clear-cut (to turn a pun).

In today’s case from Louisiana, a party bought a piece of land from the tree owner’s sister, but conditioned the purchase on being able to get rid of some trees on the boundary line with the tree owner. The owner – no doubt a Patriot – signed a contract entitling the buyer to cut down trees on the boundary. The problem was that the contract was imprecise as to how many, or where exactly the trees were. The only thing that was clear was that the parties agreed that wild Broncos couldn’t pull him over to cut down the tree owner’s prize old live oak.

Too bad the owner didn’t watch the tree-cutting crew like a Seahawk. The buyer’s contractor was kind of a Buccaneer. He cut down 12 trees and, although he was told not to, he trimmed the live oak pretty aggressively. The owner cried “Deciduous foul!” and lawsuits flew like yellow hankies. He sued the buyer, Raventhat he hadn’t given permission to do anything like that. He wanted treble damages for the wrongful cutting.

The Eastview Patriots of Georgetown, Texas – they won’t be playing this weekend, but then, their footballs all are inflated to 12.5 lbs.

The court awarded about $5,000 in damage for the cut branches on the live oak, but it disagreed on the treble damages. The Court said that the ambiguous contract seemed to contemplate that the 12 trees would be cut down, and there was no basis for any recovery on those. As for the injured live oak, it was damaged but still standing. The statute awarded treble damages for cutting down trees, and the trimming — although a violation of the contract — wasn’t something for which treble damages could be awarded.

A line of trees on Distefano’s land blocked the view of the Millican tract approaching it from the highway. Berrytown conditioned its purchase on obtaining Mr. Distefano’s permission to remove trees from his property. So Distefano authorized Berrytown in a written agreement to remove all trees on the property line dividing the Distefano and Millican tracts, except for a live oak tree. Berrytown hired Kemp Richardson to perform the clearing work. Richardson cut and removed 12 trees from the Distefano and Millican tracts, and he cut a significant number of branches from the live oak tree on Mr. Distefano’s tract.

Distefano filed a timber trespass action against Berrytown and Richardson, saying the defendants cut and removed five trees from his property and cut branches off the live oak tree without his permission. Distefano tried to recover damages under Louisiana Revised Statute 3:4278.1, commonly referred to as the “timber trespass” statute, that imposes a penalty of three times the fair market value of trees on people who unlawfully cut, fell, destroy, remove, or divert trees from a landowner’s property. Distefano also claimed restoration damages and damages due to the decrease in the value of his land, and further urged that defendants’ cutting activities caused him to suffer non-pecuniary damages.

At the conclusion of a bench trial, the court found that the agreement between Distefano and Berrytown contemplated the cutting and removal of all trees on the Distefano property that had been actually cut down. The court found that the parties clearly understood that the live oak tree was not to be cut, and awarded Distefano $6,045.00 for the unlawful removal of branches from his live oak tree, accepting expert testimony setting the fair market value of the live oak tree at that amount. The court declined to award treble damages, finding the treble damage provision inapplicable because the tree itself had not been cut down and removed, and because there was insufficient evidence of the fair market value of the limbs removed from the tree.

Distefano appealed, challenging the court’s finding that he consented to the cutting down of five trees from his property and the denial of his treble damage claim.

The Boothbay High School (Maine) Seahawks. They have this Sunday off, too …

Held: The trial court’s decision was upheld. The Court found that the contract called for the cutting of “all trees on the dividing property line” between the Distefano and Millican tracts, “with the exception of the live oak tree located on or near the property line.” A witness attested there were no trees on the property line itself, but there were trees close to the property line that hung over the property line, and those were the trees Berrytown wished to have removed. Distefano contended that the parties never contemplated the removal of any trees not located exactly on the common property line, but other witnesses disagreed, and the trial court’s findings of fact were found to be reasonable.

Distefano contended that the trial court should have ordered the defendants to pay treble damages. Louisiana Revised Statute 3:4278.1 imposes a penalty of three times the fair market value of the trees on those persons who unlawfully cut, fell, destroy, remove, or divert trees from a landowner’s property without the landowner’s consent. But, the Court said, no tree was cut down without permission. Instead, the oak tree was trimmed without permission, and the cut trees were taken pursuant to the agreement. Although contrary to the contract, the Court ruled, because the oak tree was not cut down, the statute did not authorize treble damages under the facts of this case.

Case of the Day – Wednesday, January 28, 2015

ILLEGAL SUBSTITUTION

In keeping with our Super Bowl theme, let’s look at the problem of illegal substitution. Here, the substitution had to do with expert witnesses.

It’s a trick play! Interesting in football, less so in the courtroom.

Trials aren’t supposed to be conducted by trickeration. Parties have a full chance to engage in discovery — seeing the other party’s documents, taking depositions of witnesses under oath, that sort of thing — well before trial. In today’s case, a woman was killed when a tree branch broke free in a storm and struck her. Her husband sued, and he named the owner of the tree and the power company that had an easement where the tree stood, among others. He claimed that the tree hadn’t been trimmed properly, and that negligence had led to his wife’s death.

At trial, the defendant called a witness to authenticate the location of the tree relative to the road. The plaintiff threw the red flag because the witness hadn’t been listed on the defendant’s expert witness list. An illegal substitution, he complained. The trial court didn’t think so, but offered to adjourn the trial so that the plaintiff could take the witness’s deposition. A solution neater than Pete Carroll’s hair, you say? One might think, but the plaintiff wasn’t interested.

During the witness’s testimony, it developed that he hadn’t done the survey himself, but instead was only vouching for someone else’s survey. Defendant announced it would call the two men who had taken the survey, and the plaintiff cried foul again. The trial court noted that the location of the tree was critical, and let them testify anyway. The defendant won by a touchdown.

Was it a blown call? The plaintiff decried it as uglier than a Pittsburgh Steelers retro uniform. The Court of Appeals — sitting up in the review booth — typically gives substantial deference to trial procedure decisions made by the trial court. It held that letting the witnesses testify was well within the trial court’s discretion. It noted that Slater could have taken the adjournment offered, and inasmuch as he didn’t, he was hard pressed to argue he was hurt by the trial court’s decision.

Go New England! Go Seattle! Keep us interested between the commercials.

Her husband sued everyone, including bringing a negligence action against Consumers Power Company and a premises liability claim against defendant Charter Communications. Mr. Slater alleged that the tree was in Consumers’ easement and that Consumers breached its duty by failing to remove the dangerous limb from the tree. He also alleged that the tree was on Charter’s property and that Charter breached its duty to maintain the property in a safe condition by failing to remove the dangerous limb from the tree.

Consumers moved for the case to be thrown out, asserting that the facts showed that it wasn’t responsible for trimming the tree from which the limb fell. Slater admitted that he lacked any evidence that Consumers was responsible for the tree, and in light of this, the trial court granted Consumer’s motion. At trial, Charter announced that it would call John Korr, the survey department development manager for Gosling Czubak Engineering Sciences, Inc., to authenticate a tree location survey that had been submitted to the court about one year earlier. Charter argued that the tree was not on its property but rather within the road right-of-way. Slater moved to strike Korr as a witness because Korr was not listed on the expert witness list. After the trial court indicated that it would allow Korr to testify, the court offered an adjournment to allow plaintiff to obtain an independent survey and depose Korr, but he declined.

The identity of the expert witness became a shell game …

After interviewing Korr on the third day of trial, Slater informed the trial court that he had just learned that Korr did not conduct the measurements or prepare the survey, but rather had verified the survey. The trial court then allowed Charter to call Simmerson and Anderson, the individuals who had taken the measurements and prepared the survey, to testify. Following the trial, the jury found that the tree was located in the road right of way and, therefore, judgment was entered in favor of Charter. Slater appealed.

Held: The judgment for Charter was upheld. The Court of Appeals held that the trial court properly dismissed Consumers Power from the suit, because with Slater’s admission that he had no evidence that Consumers had trimmed the tree, there was no genuine issue of fact.

The Court also ruled that the trial court had not abused its discretion by allowing Korr, Simmerson, and Anderson to testify. The decision whether to allow the late endorsement of an expert witness is reviewed for an abuse of discretion, and the rule generally is that justice is best served where an unlisted witness can be permitted to testify while the interests of the opposing party are adequately protected. Here, the trial court acknowledged that Slater had not gotten to take Korr’s deposition, but noted that whether the tree was located on plaintiff’s property or in the road right-of-way were critical factual disputes, and existence of the survey had been known to Slater for about a year before trial commenced. The court offered Slater an adjournment to obtain an independent survey and to depose Korr, which he declined.

That was enough, the Court of Appeals said, and, consequently, no abuse of discretion occurred.

Case of the Day – Thursday, January 29, 2015

CLIPPING

Clipping – not the “block in the back kind”

The penultimate installment in our Super Bowl runup is the old 15-yard standby, clipping. The clipping in today’s case was done not by a offensive player, but rather by an electric utility.

Tree trimming along and under an easement to protect power lines is typically done according to standards set by the North American Electric Reliability Corporation, known as NERC. Standards for tree trimming sound dry to you? Maybe a little looting, people trapped in elevators, and a power outage affecting 50 million people will get your attention. The great blackout of August 2003had many contributing causes, but it all started when power lines – sagging in the heat of the day and under the load put on the system – became entangled in poorly-trimmed trees.

OK, tree trimming is important work. And so it was in Louisiana. It seems that a road was widened, and power lines were relocated as a result. The electric utility came along to clip vegetation along the route, but ran into Mr. James, who objected to the vigorous removal of trees and brush. He kept running the crews off, until the utility sued for a ruling that it had an agreement with the city that superseded Mr. James’ complaints.

That’s where things got interesting. Mr. James and the utility signed an agreement that permitted the utility to trim back to the historical trim limits or to an established limit according to the kind of tree. No sooner was the ink dry but Mr. James argued that the utility had violated the deal. He sought all sorts of damages — even emotional distress — for the alleged violations.

The utility of course loaded up at trial with three of four experts, who carefully showed that the trees were cut back to their historical trim point and no more. The trial court found for the utility. On appeal, the Court agreed that despite all of the tort theories and general complaints alleged by Mr. James, because he had signed the deal with the utility, the only question was whether the deal had been kept. And as for that, the utility’s thundering herd of experts trumped Mr. James’ speculation.

With the newNERC reliability standardsrequiring more aggressive vegetation management, it is likely that clashes as to the extent to which utilities may trim will be more frequent and substantial. Thus, there are likely to be more Mr. James v. Entergy battles throughout the country.

Entergy Louisiana, Inc. v. James, 974 So.2d 838 (La.App. 2 Cir. 2008). In 1991, Highway 143 — located next to Tupaw Manor Apartments — was widened. Entergy’s distribution lines ran along Highway 143 and, with the widening of the highway, several poles were relocated. Three poles were placed so that the lines crossed the highway diagonally to the southeast corner of the apartment complex. The distribution lines at issue were contained within what Mr. James, the owner of the apartments, characterized as a “green zone” that buffers the apartment complex from the highway traffic, adding to the aesthetic value of the complex.

Tree trimming – boring. Mass panic – not so boring.

Entergy hired West Tree Service to trim vegetation encroaching on electrical distribution lines, the work to be done in compliance with Entergy’s “Distribution Vegetation Management Line Clearance Specifications” (“Clearance Specifications”) on file with the Louisiana Public Service Commission. During August 2004, another subcontractor sprayed the area with herbicide. Then, West cleared vegetation that had been sprayed and performed additional trimming on Mr. James’ property as per Entergy’s contract. Mr. James objected, but the West crews made several additional attempts to trim vegetation on the property. Unable to obtain consent from Mr. James, Entergy filed a petition asserting that it had an agreement with the city of West Monroe to operate electric facilities within the city and had a right-of-way easement onto Mr. James’ property for maintenance purposes. Mr. James answered and demanded damages in excess of $410,000. He claimed that Entergy engaged in the clear-cutting of trees, harvesting and removing over 200 trees, far in excess of the allowed or agreed upon width of trimming.

Prior to trial, the parties entered into a stipulated declaratory judgment in which they agreed that Entergy has the right to maintain all of its electric distribution lines and poles by trimming any encroaching trees, limbs, shrubs and other vegetation within 10 feet of Entergy’s lines in accordance with modern arboretum standards and as specifically outlined in Entergy’s Clearance Specifications, and as long as Entergy complied in good faith with the vegetation maintenance standards, Mr. James would have no right to prohibit with Entergy’s reasonable and necessary trimming of encroaching trees, limbs, shrubs and other vegetation along its distribution lines.

The Clearance Specifications provided that all trees at a minimum would be trimmed back to the previous trim point or according to a table, whichever was greater. The table provided that slow growth trees in rural settings would be trimmed to 10 feet and fast growth trees in rural settings would be trimmed to 15 feet. An exception would be made where there was a customer refusal where procedures outlined in the Clearance Specifications have been followed, provided that the exception would not result in unsafe conditions or jeopardize reliability.

Mr. James argued Entergy could only trim to an indefinite width depending on the extent to which it had actually claimed and used a right-of-way in the past or 10 feet under the Clearance Specifications. Mr. James alleged that Entergy exceeded the allowable width, causing damage to the aesthetic value of the “green zone” around the apartment complex. Mr. James filled out a Tree Cutting Refusal Form expressing his objection to having any trees removed, which he contended requires Entergy to then seek a court order to continue trimming. Entergy’s letter to Mr. James noted that the trimming was necessary to ensure safe, reliable electrical service to the area, including the apartment complex.

Entergy sued to get the court order. At trial, Entergy provided detailed testimony regarding the existence of a prior trim point, and that all trimming was within that point. Mr. James provided testimony that there were log trucks being loaded with cut trees coming and going from the property, which was contradicted by West employees. The trial court framed the issue as whether Entergy had complied with its Clearance Specifications in performing the trimming, and found that Mr. James failed to carry his burden of proof and was, therefore, entitled to no damages. He appealed.

Held: Entergy had the right to trim the vegetation. The Court concluded that the stipulated declaratory judgment signed by the parties prior to trial controlled the allowable trimming width of the vegetation on the James property. Thus, the issue was whether Entergy complied with its Clearance Specifications. Entergy produced several qualified witnesses, whose testimony was thoroughly outlined by the trial judge, who found strong evidence of re-sprouts and prior trim points. The Court found no abuse of discretion. Although the Court noted that the Clearance Specifications might, in certain circumstances, lead to unauthorized, increased and unchecked trimming on private property, it concluded that under the specific facts of the case, Mr. James was bound by the stipulated declaratory judgment.

Case of the Day – Friday, January 30, 2015

INTENTIONAL GROUNDING

Intentional grounding? You can bet that was the call after Mr. and Mrs. Peters bought a lot next to the Kriegs.

The Peters didn’t know where the lot lines were. Their real estate agent didn’t, either. Ah, details, details … That didn’t stop them from hacking down trees on the property as soon as the ink was dry on the deed, in order to build their dream house. You probably know where this is going. Harry Peters, acting as his own tree service, goofed, and cut down 29 trees on the Kriegs’ land.

The Peters admitted their honest error. OK, they intended to ground the trees. They just didn’t know that the trees they grounded were the Kriegs’. They were willing to pay for the mistake. But what they were not willing to do was pay the treble damages authorized in the law for wrongful timber cutting.

It was sort of like the intentional grounding foul in football. It’s one thing to get assessed a 10-yard penalty. But on top of that, the team loses the down. Sort of like the double whammy (or triple, if you like) of the statutory multiplier for wrongfully cutting trees.

C’mon, the Peterses said, there wasn’t any evidence they knew they were cutting Kriegs’ trees. The Court pointed out that the state of the evidence was precisely the problem. It was up to the Peterses to provethat they thought the land was theirs. The wife’s testimony was all they had offered, and it didn’t help: she explained they didn’t really know where the boundaries were, and never bothered to find out. But the biggest problem was what Mr. Peters testified to: nothing. He was the one who cut the trees down, and the Court seemed to expect that he would have material testimony to offer. But he didn’t testify.

There’s a well-known principle in evidence known generally as the “missing witness instruction.” It holds, as the legendary Professor Wigmore put it, that “the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.” In other words, if you have particular control of evidence, and you do not bring it forward, a court is allowed to assume it would have been harmful to your cause if you had done so.

The Court didn’t say it here, but it strongly implied that the absence of testimony from Harry Peters led it to conclude that if he had taken the stand, he wouldn’t have helped his cause any.

Krieg v. Peters, 46 A.D.3d 1190, 850 N.Y.S.2d 211 (N.Y.A.D. 3 Dept., 2007). In May 2004, the parties became adjoining property owners when the Peters family purchased the vacant lot next to the Kriegs. The Peterses intended to construct a house on their property, so Mr. Peters began clearing land without consulting the map referenced in their deed or having a survey conducted. He removed 29 trees from Krieg’s property. Following a jury trial, the Kriegs were awarded damages, including treble damages under New York statute for the removal of this timber. On appeal, the Peterses only contest the treble damages award.

Trying to sniff out a missing witness

Held: The treble damages were upheld. Under RPAPL §861[2], the New York treble damage statute, in order to avoid treble damages, the Peterses had the burden of proving by clear and convincing evidence that when they removed the trees from the Kriegs’ property, they “had cause to believe the land was [their] own.” Their proof in this regard was woefully inadequate. Mrs. Peters was the only defense witness to testify on this critical issue, and the appellate court found that her testimony had been more damning than helpful in sustaining their burden. She said that, before she and her husband purchased the property, she walked it on one occasion with their realtor. At that time, she specifically asked about the boundary lines but the realtor couldn’t answer her question with any certainty. She said she told her husband of the realtor’s uncertainty when they later walked the property together. She also candidly admitted that no steps were taken to obtain a survey or consult the map referenced in their deed before clearing the land. The Court found it significant that, although he had logged the property, Mr. Peters never testified. It found plenty of evidence that the defendants had no cause to know whether the land Mr. Peters was logging belonged to them or not.

The Peterses also argued that the legislature never intended for RPAPL §861 to apply to individuals such as themselves who make “honest” mistakes about boundary lines. The Court disagreed, holding that on its face, the statutory scheme clearly applied to the facts and circumstances of the case and, in the absence of sufficient proof on defendants’ part to avoid treble damages, it didn’t find the treble damage award to be inconsistent with the law’s purpose or intent.

Held: The treble damages were upheld. Under RPAPL §861[2], the New York treble damage statute, in order to avoid treble damages, the Peterses had the burden of proving by clear and convincing evidence that when they removed the trees from the Kriegs’ property, they “had cause to believe the land was [their] own.” Their proof in this regard was woefully inadequate. Mrs. Peters was the only defense witness to testify on this critical issue, and the appellate court found that her testimony had been more damning than helpful in sustaining their burden. She said that, before she and her husband purchased the property, she walked it on one occasion with their realtor. At that time, she specifically asked about the boundary lines but the realtor couldn’t answer her question with any certainty. She said she told her husband of the realtor’s uncertainty when they later walked the property together. She also candidly admitted that no steps were taken to obtain a survey or consult the map referenced in their deed before clearing the land. The Court found it significant that, although he had logged the property, Mr. Peters never testified. It found plenty of evidence that the defendants had no cause to know whether the land Mr. Peters was logging belonged to them or not.

The Peterses also argued that the legislature never intended for RPAPL §861 to apply to individuals such as themselves who make “honest” mistakes about boundary lines. The Court disagreed, holding that on its face, the statutory scheme clearly applied to the facts and circumstances of the case and, in the absence of sufficient proof on defendants’ part to avoid treble damages, it didn’t find the treble damage award to be inconsistent with the law’s purpose or intent.